City of Aurora v. Acosta

• Decision Date: 06 February 1995
• Docket Number: No. 94SC250,94SC250
• Citation: 892 P.2d 264
• Parties: CITY OF AURORA, Petitioner, v. Max ACOSTA, Josephine Pullano, James Roper and Larry Hoffenberg, Respondents.
• Court: Colorado Supreme Court

Page 264

892 P.2d 264

CITY OF AURORA, Petitioner, v. Max ACOSTA, Josephine Pullano, James Roper and Larry Hoffenberg, Respondents.

No. 94SC250.

Supreme Court of Colorado En Banc.

Feb. 6, 1995.

Office of City Atty., Charles H. Richardson, Jr., Michael J. Hyman, Aurora, Becker Stowe Bowles & Lynch, P.C., Daniel C. Lynch, Denver, for petitioner.

Kilkenny Donelson & Gambin, A Partnership of Professional Corporations, Gregory J. Kilkenny, Stephen W. Donelson, Paul G. Gambin, Denver, for respondents.

Bruno, Bruno & Colin, P.C., Marc F. Colin, Richard A. Stubbs, Denver, for amicus curiae Aurora Police Ass'n.

David W. Broadwell, Denver, for amicus curiae Colo. Mun. League.

Justice MULLARKEY delivered the Opinion of the Court.

Respondents Acosta, Pullano, Roper and Hoffenberg, citizens and taxpayers of the City of Aurora, brought this action against the City of Aurora seeking invalidation of two voter-approved ballot issues, limitation of the district's spending base that was also approved by voters in a second ballot issue, declarative and injunctive relief regarding all future ballot questions, and an award of attorney's fees. Respondents claimed that the ballot issues in question violated Article X, Section 20 of the Colorado Constitution (Amendment 1) by (1) failing to state a proposed spending increase as a dollar amount, and (2) failing to include an estimate of the "full fiscal year dollar increase" of proposed property taxes. The district court disagreed and granted the City's motion for summary judgment on all of the issues presented and dismissed Acosta's complaint with prejudice. Acosta appealed to the court of appeals. The City then petitioned the Supreme Court for certiorari review before judgment pursuant to C.A.R. 50. The Supreme Court affirms the judgment of the district court and, applying a "substantial compliance" standard, holds that the ballot issues in question did not violate the requirements of Amendment 1.

Respondents Acosta, Pullano, Roper and Hoffenberg (Acosta), citizens and taxpayers of the City of Aurora, brought this action against the City of Aurora (the City) seeking invalidation of a voter-approved ballot issue; limitation of the district's spending base that was also approved by voters in a second ballot issue; declarative and injunctive relief regarding all future ballot questions; and an award of attorney's fees. Acosta claimed that the ballot issues in question violated Article X, Section 20 of the Colorado Constitution (Amendment 1). The district court disagreed and granted the City's motion for summary judgment on all of the issues presented and dismissed Acosta's complaint with prejudice. Acosta appealed to the court of appeals. The City then petitioned this court for certiorari review before judgment pursuant to C.A.R. 50. We granted certiorari and now affirm the judgment of the district court.

I.

The City of Aurora submitted eight financial issues to the voters in a mail ballot election held on November 2, 1993. These issues included six bond questions, a sales and use tax increase, and a revenue change. The voters approved Ballot Question A and Ballot Question G. Ballot Question A (Question A) sought an increase in the sales and use tax rate for the purpose of providing more police protection and more criminal detention space. Ballot Question G (Question G) sought an amendment of the Aurora Charter to allow the City Council to issue general obligation bonds to finance public safety projects "including fire station improvements, an emergency operations center and the completion of a detention center." Question G also requested voter approval of additional property taxes "imposed in each year without limit of rate or amount" as necessary to pay such bonds, and a property tax increase of not more than $2,000 annually to pay for operation and maintenance of the new facilities.

Prior to the election, Acosta filed a complaint attempting to invalidate the proposed ballot questions as violating Amendment 1. Acosta argued that (1) any violations of Amendment 1 must be subject to strict scrutiny; (2) violations of Amendment 1 must be determined under a standard of strict compliance; and (3) plaintiffs were not required to demonstrate that violations affected the election results in order to have standing to sue. Acosta alleged that the City violated Amendment 1 in Questions A through G by (1) combining debt and spending issues in the same ballot question; (2) attempting to exempt further tax increases from Amendment 1 election requirements; (3) failing to include the dollar amounts of tax and revenue increases in the ballot titles; and (4) failing to capitalize ballot titles.

The trial court held that these challenges were moot except with respect to the two ballot issues approved by the voters, Questions A and G. It then granted summary judgment for the City on Acosta's remaining challenges to Questions A and G.

We granted certiorari to review all of the questions raised in the City's petition. ¹ Subsequent to our decision to grant certiorari, we decided Bickel v. City of Boulder, 885 P.2d 215 (Colo.1994). The parties agree that our opinion in Bickel resolves most of the issues on which we initially granted certiorari in this case. The following issues alone remain for resolution:

1. Whether Ballot Question A violated Amendment 1 by failing to include a dollar amount for proposed spending increases?

2. Whether Ballot Question G violated Amendment 1 by failing to include the language necessary for measures seeking a tax increase under section 3?

Because we find that both Question A and Question G complied with the requirements of Amendment 1, we uphold the judgment of the district court.

II.

The first step in reviewing any alleged violation of the state constitution is to look at the terms of the constitutional provision itself and to apply the constitutional provision according to its clear terms. Carrara Place, Ltd. v. Arapahoe County Bd. of Equalization, 761 P.2d 197, 202 (Colo.1988). We must give effect, if possible, to every word, Charlton v. Kimata, 815 P.2d 946, 949 (Colo.1991), and consider "the object to be accomplished and the mischief to be avoided" by the provision at issue. People v. Y.D.M., 197 Colo. 403, 407, 593 P.2d 1356, 1359 (1979). In addition to these general interpretational rules, Amendment 1 provides that "[i]ts preferred interpretation shall reasonably restrain most the growth of government." Colo. Const. art. X, § 20(1). We have interpreted this language to mean that "where multiple interpretations of an Amendment 1 provision are equally supported by the text of that amendment, a court should choose that interpretation which it concludes would create the greatest restraint on the growth of government." Bickel, 885 P.2d at 229.

When reviewing claims brought to enforce the Amendment 1 election provisions, we have held that a "substantial compliance" standard is the proper measure to apply. Id. at 227. The application of this standard reflects our long-standing position that "[i]mposing a requirement of strict compliance with voting regulation, especially in the absence of any showing of fraud or other intentional wrongdoing, would unduly restrict the franchise." Id. at 226-27; see also Meyer v. Lamm, 846 P.2d 862, 875-78 (Colo.1993); Erickson v. Blair, 670 P.2d 749, 754-55 (Colo.1983); Felzien v. School Dist. RE-3 Frenchman, 152 Colo. 92, 96, 380 P.2d 572, 574 (1963); Baldauf v. Gunson, 90 Colo. 243, 245-46, 8 P.2d 265, 266 (1932); Burbank v. Board of County Comm'rs, 70 Colo. 302, 306-07, 201 P. 43, 44-45 (1921). We will address the violations of Amendment 1 alleged by Acosta in light of these standards.

A.

Ballot Question A stated:

Shall Aurora's taxes be increased by $5,000,000 annually, commencing in 1994, for more police protection and more detention space, and by whatever additional amounts are raised annually thereafter, from a .25% Sales and Use Tax, to be spent as a voter-approved revenue change and an exception to the limits which would otherwise apply, to permit: 1) increased staffing of the Aurora Police Department, including civilian support staff and necessary facilities and equipment to provide a minimum of two uniformed police officers per 1000 person population in 1995 and thereafter; and 2) operation and maintenance of the municipal detention facility, without limiting or affecting the collection or spending of other revenues?

(emphasis added). Acosta contends that Ballot Question A violated Amendment 1 by seeking approval of an "open-ended" revenue increase. In particular, Acosta argues that the phrase in section 7(d), "voter-approved revenue changes are dollar amounts," implies that voter approval cannot be valid unless the ballot question states the proposed revenue increase in dollars, rather than in terms of the source of revenue. Colo. Const. art X, § 20(7)(d) (emphasis added). ² Question A is thus invalid, according to Acosta, because it proposed retention of any excess revenue that might result from collection of the new sales and use tax without providing to voters the specific dollar amount of the excess revenue it sought to retain. We do not agree.

Amendment 1 requires voter approval for tax increases and limits spending increases unless approved by the electorate. ³ Revenue "collected, kept, or spent illegally" must be refunded with interest. Id. § 20(1).

We interpret Amendment 1 to require voters to approve the collection, retention or expenditure of revenue increases in three situations. The first is where a district proposes any of the forms of revenue increases detailed in section 4(a), such as new taxes, increased tax rates or tax policy changes that result in increased tax revenues. Id. § 20(4)(a). The second is where revenues actually collected exceed the dollar amounts of the spending limits imposed in section 7(b). In this situation, voters may "approve a revenue change as an offset" to the...