Busse v. City of Golden

• Decision Date: 30 June 2003
• Docket Number: No. 02SA356.,02SA356.
• Parties: Kathleen M. BUSSE, Irene Oliver, and Virginia L. Cusack, Plaintiffs-Appellants, v. The CITY OF GOLDEN, a Colorado municipal corporation; and the City Council of the City of Golden, Defendants-Appellees.
• Court: Colorado Supreme Court

73 P.3d 660

Kathleen M. BUSSE, Irene Oliver, and Virginia L. Cusack, Plaintiffs-Appellants, v. The CITY OF GOLDEN, a Colorado municipal corporation; and the City Council of the City of Golden, Defendants-Appellees.

No. 02SA356.

Supreme Court of Colorado, En Banc.

June 30, 2003.

As Modified on Denial of Rehearing July 28, 2003.

Victor F. Boog & Associates, P.C., Victor F. Boog, Lakewood, Colorado, Attorneys for Plaintiffs-Appellants.

Windholz & Associates, David S. Williamson, James A. Windholz, Boulder, Colorado, Attorneys for Defendants-Appellees.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

This appeal involves challenges to a bond issue approved by voters in the City of Golden contesting the validity of the ballot title and seeking declaratory and equitable relief because the City spent bond funds on projects not authorized by the purpose of its referendum.

The trial court ruled that the ballot title challenge was time-barred and dismissed plaintiffs' additional claims on the basis that they raised political questions. Because municipal election contests are excluded from the court of appeals' jurisdiction, we transferred plaintiffs' appeal to us. We affirm the trial court's ruling that plaintiffs' challenge to the ballot title is time-barred. Concerning plaintiffs' alternate theories of relief, we reverse the trial court's ruling and hold that these claims do not present political questions.

Because the trial court will need clarification of Colorado law to address the contentions of the parties, either by summary judgment or at trial, we review the law governing a municipality's discretion concerning the expenditures of bond proceeds. We hold that a city's expenditures are appropriate provided that the expenditures do not materially depart from the purpose of a bond measure and that necessary expenditures incidental to an authorized purpose are within a city's discretion, and therefore permissible. The question of whether the City's expenditures and modifications are within its discretion is to be resolved by the trial court. Hence, we affirm in part and reverse in part and return this case to the trial court to conduct further proceedings consistent with this opinion.

II. Facts and Proceedings Below

The City of Golden held an election in which it submitted Referred Issue 2A for voter approval. The issue proposed $26.5 million in bond sales to acquire and construct park and recreation facilities.¹ Voters passed the measure by a majority vote. After the passage of Referred Issue 2A, the City Council passed an ordinance to authorize the issuance of sales and use tax revenue bonds to fund the acquisition, development, and construction of land, recreational facilities, and open space. Subsequently, the City issued $21.6 million of bonds to finance the construction of a golf course, an aquatic park, and to purchase land for the park system. Although not specifically enumerated in Referred Issue 2A, the City also undertook several tasks to prepare the property for these uses.²

Soon after the City issued the bonds, it heard recommendations from the Parks and Recreation Advisory Board on the projects to be funded by the remaining $4.8 million of bonds authorized by voters and conducted a series of public Council meetings to review the recommendations. Based upon the recommendations and meetings, the City Council concluded that it could provide the same amenities to the public by enhancing existing facilities instead of building a stand-alone satellite community center. The Council therefore adopted a resolution to issue the remaining $4.8 million of bonds in part to enhance the existing community center and gymnasium instead of building a satellite community center as originally provided for in Referred Issue 2A.

Nearly a year after the election, plaintiffs, who are residents of and taxpayers to the City of Golden, filed a declaratory judgment action in the trial court alleging that Referred Issue 2A was invalid because it included multiple, separate purposes on a single ballot title. Alternatively, plaintiffs sought a declaratory judgment that (1) the City must spend bond proceeds only on express enumerated purposes, and (2) that the ordinance and the resolution were invalid to the extent that they authorized the expenditure of bond proceeds for purposes not enumerated in Referred Issue 2A. Finally, plaintiffs sought relief based upon promissory or equitable estoppel to require the City to expend the bond proceeds as represented by the City.

The City filed a motion to dismiss claiming that the ballot title challenge was untimely and therefore, the court lacked jurisdiction to review it. Additionally, it argued that plaintiffs' alternate theories for relief did not present claims for which relief could be granted because the contested expenditures were within the City's discretion. In support of its motion, the City submitted several affidavits of city officials and contracts concerning the City's land use and acquisition. In response to the motion, plaintiffs submitted an affidavit and a copy of the City Council's ordinance authorizing the issuance of the bonds.

Concerning plaintiffs' challenge to the ballot title, the trial court held that the claim was time-barred pursuant to the election contest statute of limitations provisions of sections 1-11-203.5 and 213(4), 1 C.R.S. (2002) and dismissed the claim because it lacked jurisdiction. Concerning plaintiffs' alternate remedies, in which they sought to restrict the City Council's discretion in authorizing specific expenditures, the trial court concluded that plaintiffs' claims were nonjusticiable political questions and because it lacked jurisdiction, dismissed these claims as well.

Plaintiffs appealed the trial court's ruling to the court of appeals. Because the court of appeals' jurisdiction excludes municipal election contests,³ we accepted this case for review upon referral from that court.⁴

III. Analysis

A. Plaintiff's first claim is a ballot title contest and therefore time-barred by the statute of limitations

We first address plaintiffs' claim that Referred Issue 2A is invalid because it includes four separate purposes, thereby requiring voters to vote for all of them collectively, against all of them collectively, or none at all. Because we construe this claim to be a challenge to the content of the ballot itself on the basis of multiple subjects, the statute of limitations forecloses suit.⁵

Pursuant to section 1-11-201(3), a party may contest the results of a ballot question on several grounds. Among the causes listed in that section are the inclusion of illegal votes in election results, errors by election judges, and an election official's misconduct which changed the result of the election.⁶

In addition to the causes listed in section 1-11-201(3) to challenge election results, section 1-11-203.5 provides parties with a way to contest a ballot title itself. Included in this section is a statute of limitations provision which requires that the contestor file a complaint within five days after the title of the ballot issue or ballot question is set by the political subdivision. § 1-11-203.5(2), 1 C.R.S. (2002). The procedure provided in this section is the exclusive means to contest or otherwise challenge the order of the ballot or the form or content of the ballot title. § 1-11-203.5(5).⁷

Plaintiffs concede that the time to challenge Referred Issue 2A had long since passed by the time they filed their complaint. However, plaintiffs argue that none of the grounds upon which a party may contest an election result on a ballot issue included in section 1-11-201(3) is applicable here. Because their challenge is not a ballot title contest, they contend that the statute of limitations in section 1-11-203.5(2) does not apply to bar the claim. Plaintiffs additionally argue that our holding in City of Denver v. Hayes, 28 Colo. 110, 63 P. 311 (1900), renders the failure to challenge the content of the ballot title within the five day statute of limitations period irrelevant and immaterial.

Reviewing the statutory language of sections 1-11-201(3) and 1-11-203.5, we disagree with plaintiffs' argument for two reasons. First, section 1-11-201(3) states that a ballot question may be contested on the enumerated grounds provided. Use of the word "may" suggests that the list of permissible purposes to contest the result of a ballot issue is not exhaustive. See, e.g., People v. Miller, 890 P.2d 84, 98 n. 15 (Colo.1995)

. Second, section 1-11-203.5 specifically provides parties with a way to challenge the form or content of a ballot title and provides exclusive procedures—including a five day statute of limitations period—which govern such challenges.

Nor do we find persuasive plaintiffs' argument that Hayes is controlling. In Hayes, we held that bonds issued for several purposes are invalid unless each purpose and the amount proposed are separately submitted for voter approval or rejection. 28 Colo. at 115, 63 P. at 313. However, the timeliness of filing a ballot title challenge was not at issue in Hayes, which we decided nearly a century before the general assembly enacted section 1-11-203.5. See Contests concerning ballot order or ballot title—ballot issue or ballot question elections, ch. 200, § 64, 1994 Sess. Laws 1176. Thus, under our current statutory scheme, the statute of limitations is a threshold requirement any party contesting a ballot title must observe. See Molleck v. City of Golden, 884 P.2d 725, 727 (Colo. 1994)

.⁸

Plaintiffs' argument that the ballot issue was invalid because it contained multiple purposes is clearly a challenge to the form or content of the ballot title. Because section 1-11-203.5(2) requires that all challenges to the form or content of a ballot title must be filed within five days after the title of the ballot issue is set, and because plaintiffs filed their claim long after the...