City of Glendale v. Buchanan
| Decision Date | 24 April 1978 |
| Docket Number | No. 27243,I,No. 5,5,27243 |
| Parties | The CITY OF GLENDALE, a Municipal Corporation, George T. Garson, Individually and as Mayor of the City of Glendale, Ralph Chambers, Joseph Kaiser, Tim Greer, John Johnson, Robert Gilmour, Individually and as City Councilmen of the City of Glendale, and Frank P. Mac Fadden, Plaintiffs-Appellees, v. Mary Estill BUCHANAN, Secretary of State, State of Colorado, John P. Moore, Attorney General, State of Colorado, Irving Mehler, Reporter to the Supreme Court of the State of Colorado and Board of County Commissioners of the County of Arapahoe, Defendants-Appellees, City and County of Denver, Defendant-Appellant, Cherry Creek School Districtntervenor-Appellee. CITY AND COUNTY OF DENVER, Third-Party Plaintiff-Appellant, v. Mary Estill BUCHANAN, Secretary of State, State of Colorado, John P. Moore, Attorney General, State of Colorado, Irving Mehler, Reporter to the Supreme Court of the State of Colorado, the Board of County Commissioners of the Counties of Adams, Jefferson, Arapahoe, Douglas, Weld, Boulder, Gilpin, and Clear Creek, all the Boards of County Commissioners of all other Colorado Counties, as a class and the Cities of Aurora and Lakewood, Third-Party Defendants-Appellees. |
| Court | Colorado Supreme Court |
Douglas G. McKinnon, City Atty., Littleton, Paul Puckett, Crested Butte, for plaintiffs-appellees.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Mary J. Mullarkey, Asst. Atty. Gen., for State defendants-appellees and State third-party defendants-appellees.
Tom L. Eitel, Englewood, for intervenor-appellee, Cherry Creek School Dist. No. 5.
Ronald S. Loser, County Atty., for defendant and third-party defendant appellee, Board of County Commissioners of the County of Arapahoe.
Max P. Zall, City Atty., Herman J. Atencio, Asst. City Atty., David J. Hahn, Sp. Counsel, Denver, for defendant and third-party plaintiff-appellant, City and County of Denver.
Patrick Mahan, County Atty., Richard J. Scheurer, Asst. County Atty., George J. Robinson, Sp. Counsel, Lakewood, for third-party defendant-appellee, County of Jefferson.
S. Morris Lubow, County Atty., Larry W. Berkowitz, Michael F. Swanson, Asst. County Attys., for third-party defendant-appellee, Board of County Commissioners of Adams County.
Thomas O. David, County Atty., Sam Telep, County Atty., for third-party defendant-appellee, County of Weld.
William W. McNeill, County Atty., for third-party defendant-appellee, County of Clear Creek.
Raymond C. Johnson, City Atty., for third-party defendant-appellee, City of Lakewood.
Joseph C. French, County Atty., for third-party defendant-appellee, County of Boulder.
Leland Coulter, City Atty., for third-party defendant-appellee, City of Aurora.
Earl L. Dazey, County Atty., for third-party defendant-appellee, County of Douglas.
John M. Yeager, County Atty., Central City, for third-party defendant-appellee, County of Gilpin.
Norman A. Palermo, County Atty., for third-party defendant-appellee, County of El Paso.
An action was brought in the trial court seeking a declaratory judgment that constitutional Amendment No. 1, commonly known as the Poundstone Amendment, adopted by the electorate at the 1974 general election, is void. The trial court held that the amendment is valid and we affirm.
Amendment No. 1 was an initiated proposal to amend Article XIV, Section 3 and Article XX, Section 1 of the Constitution of the State of Colorado. Article XIV, Section 3 provided that no territory of a county may be annexed to a neighboring county without the approval of the voters of the county in which the affected territory is located. Amendment No. 1 amended this section by adding the words "Except as otherwise provided by the statute," thus allowing the general assembly to enact legislation which would eliminate the previously required vote of the affected county. The main purpose of Amendment No. 1 was to change Article XX, Section 1 by providing that Article XIV, Section 3 and the annexation and consolidation statutes applicable to counties would also apply to the City and County of Denver.
The petition to initiate this proposed Amendment No. 1 was filed with the Secretary of State on July 6, 1973. As provided by section 1-40-101, C.R.S.1973, a board consisting of the Secretary of State, the Attorney General and the Reporter of the Supreme Court approved the following ballot title for the proposed amendment:
"An act to amend Articles XIV and XX of the Constitution of the State of Colorado concerning the annexation of property by a county or city and county, and prohibiting the striking off of any territory from a county without first submitting the question to a vote of the qualified electors of the county and without an affirmative vote of the majority of those electors."
Section 1-40-101(1), C.R.S.1973, 1 requires the board to devise a ballot title "which shall correctly and fairly express the true intent and meaning of the law or constitutional amendment." The title was returned to the proponents and the full text of the proposal was published pursuant to the requirements of Article XXIII of the Colorado Constitution and section 1-4-103, C.R.S.1973. No one challenged the ballot title prior to the election. At the general election on November 5, 1974, Amendment No. 1 received 409,174 "yes" votes and 292,040 "no" votes.
This suit arose when the City of Glendale filed an action against the City and County of Denver and the board which fixed the ballot title, seeking a declaratory judgment that Glendale was not automatically annexed by the passage of Amendment No. 1. In the alternative, Glendale sought to invalidate Amendment No. 1 due to its allegedly misleading ballot title. According to Glendale, the ballot title implied that the amendment would require the approval of the voters in a county whose territory is to be annexed, although the effect of the amendment is actually the opposite, and allows the general assembly to circumvent the voter approval requirement.
Denver raised the affirmative defense that Amendment No. 1 was irreconcilable with Amendment No. 5, which had been passed at the same general election, and that both amendments were void. Amendment No. 5 altered Article XX, Section 1 to require the approval of a boundary control commission before any annexation or consolidation proceeding could be initiated. Cherry Creek School District No. 5 and Arapahoe County intervened and defended the validity of Amendment No. 1.
On March 3, 1975, the trial court entered an order ruling that the passage of Amendment No. 1 did not cause the annexation to Denver of Glendale or any other enclave. It also indicated that the ballot title for Amendment No. 1 was misleading, but that disposition of the issue of the amendment's validity would await joinder of other interested counties or cities.
Denver's answer was then designated a third-party complaint. After various other counties and cities had responded as third-party defendants, the trial court ordered that all proper parties were before the trial court and that "(t)he remaining issue is whether said title is so misleading that it affects the validity of Amendment one, i. e., whether Amendment one is valid, partially valid and partially void, or all void." After receiving briefs on this question, the trial court ruled that Amendment No. 1 was valid for the following reasons: available statutory and equitable pre-election remedies had not been pursued; the opponents of Amendment No. 1 failed to show beyond a reasonable doubt that the title had misled voters; to invalidate the amendment would do violence to the power of initiative; and Amendment No. 1 and Amendment No. 5 were not in conflict. Denver appealed the judgment to this court.
Denver places emphasis on the argument that the ballot title was misleading. However, the real issue is whether Denver failed, as the trial court ruled, to carry its burden of showing that enough voters were actually misled to warrant invalidating an initiated measure which received the approval of the electors of the state. The absence of any challenge to the ballot title before the election further weakens the position of the opponents of Amendment No. 1.
As we observed in Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972) (), the political power of this state is vested in the people. In Article V, Section 1 of the constitution, the people have reserved to themselves the right of initiative " independent of the legislature." The initiative power is expressly stated to be self-executing, and the power of initiative is to be liberally construed to allow the greatest possible exercise of this valuable right. E. g., Billings v. Buchanan, Colo., 555 P.2d 176 (1976). See also section 1-40-111, C.R.S.1973. Acts of the legislature which affect the exercise of the initiative must further the purpose of the right or facilitate its operation; if they do not, the legislative acts are invalid. In re Interrogatories Propounded by Senate Concerning House Bill 1078, Colo., 536 P.2d 308 (1975); Common Cause v. Anderson, 177 Colo. 402, 495 P.2d 218 (1972) (); Common Cause II, supra; Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952). Similarly, legislative acts which prescribe the procedure to be used in voting on initiatives may not restrict the free exercise of the right. See In re Interrogatories Concerning House Bill 1078, supra. With this background, we examine the issue of the validity of Amendment No. 1.
Every reasonable presumption is to be indulged in favor of a constitutional amendment which the people have adopted at a general election. People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167 (1903); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976). Here, there was no proof or any offer of...
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