Committee for Better Health Care for All Colorado Citizens by Schrier v. Meyer

• Citation: 830 P.2d 884
• Decision Date: 20 April 1992
• Docket Number: No. 90SA440,90SA440
• Parties: The COMMITTEE FOR BETTER HEALTH CARE FOR ALL COLORADO CITIZENS, by Robert W. SCHRIER and Carl E. Bartecchi, Plaintiff-Appellant, v. Natalie MEYER as Secretary of State of the State of Colorado and Pat R. Stealey, Defendants-Appellees.
• Court: Supreme Court of Colorado

Page 884

830 P.2d 884

The COMMITTEE FOR BETTER HEALTH CARE FOR ALL COLORADO

CITIZENS, by Robert W. SCHRIER and Carl E.

Bartecchi, Plaintiff-Appellant, v. Natalie MEYER as Secretary of State of the State of Colorado and Pat R. Stealey, Defendants-Appellees.

No. 90SA440.

Supreme Court of Colorado,

En Banc.

April 20, 1992.

Rehearing Denied May 11, 1992.

Lee N. Sternal, P.C., Lee N. Sternal, Pueblo, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., Denver, for defendant-appellee Natalie Meyer.

Hays & Wilson, James C. Wilson, Jr., Mark Bender, James H. Beimford, Denver, for defendant-appellee Pat R. Stealey.

Justice KIRSHBAUM delivered the Opinion of the Court.

The Committee for Better Health Care for all Colorado Citizens (the Committee), appellant, appeals the judgment of the District Court for the Second Judicial District of Colorado affirming a final administrative decision of appellee the Colorado Secretary of State (the Secretary) rejecting numerous petitions filed in support of a legislative initiative to increase the amounts of state and local taxes levied on sales of tobacco products. ¹ The Secretary concluded, inter alia, that certain portions of sections 1-40-106, -107, and -109, 1B C.R.S. (1991 Supp.) (hereinafter the 1989 amendments), ² and administrative policies developed by the Secretary pursuant thereto were applicable to this initiative process. On appeal, the Committee contends that the Secretary arbitrarily and capriciously applied certain portions of the 1989 amendments to this initiative process; that, if applicable, such legislation contravenes provisions of article V of the Colorado Constitution; and that the Secretary is prohibited by the doctrine of equitable estoppel from relying on such legislation. We affirm in part, reverse in part, and remand the case to the district court with directions to remand to the Secretary for further proceedings.

I

On May 5, 1989, the Committee filed its proposed initiative with the legislative council and the office of legislative legal services for review and comment, pursuant to section 1-40-101(1), 1B C.R.S. (1991 Supp.). A conference was conducted on May 18, 1989, and the final version of the initiative was then filed with the Secretary pursuant to section 1-40-101(2), 1B C.R.S. (1991 Supp.). On June 7, 1989, the Initiative Title Setting Board met and established the title, submission clause and a summary, pursuant to section 1-40-101(2), 1B C.R.S. (1991 Supp.).

While those events transpired, the General Assembly considered and adopted several amendments to various portions of sections 1-40-101 to -119, 1B C.R.S. (1980), the statutory scheme regulating the initiative process. The 1989 amendments became effective on June 10, 1989. Shortly after that date Robert Schrier, a Committee representative, telephoned Colorado Elections Officer Donetta Davidson, a member of the Secretary's staff, to inquire about the applicability of the 1989 amendments to the proceedings concerning the initiative. Schrier inquired specifically whether the period within which to petition for review of the contents of the ballot title, submission clause and summary fixed by the Initiative Title Setting Board was the fifteen-day period established by one of the 1989 amendments rather than the thirty-day period provided by the prior parallel statutory provision. Davidson replied that in her opinion the thirty-day period would control that matter and advised Schrier to obtain legal advice regarding the applicability of the new legislation to other matters associated with the initiative.

On June 30, 1989, Davidson met with Schrier and another representative of the Committee; requested the Committee to designate two representatives, as required by one provision of the 1989 amendments; and gave them copies of the statutes governing the initiative process and of the 1989 amendments, a set of circulator instructions containing information based on the 1989 amendments, and a circulator affidavit form based on provisions of the 1989 amendments. In late July 1989, Schrier received an initiative instruction manual from the Secretary, which manual also contained the above-described documents.

In early August of 1989, after obtaining the Secretary's approval of a sample petition, the Committee began the process of collecting signatures in support of the initiative. ³ On December 7, 1989, the Committee filed 1,955 petitions containing approximately 73,600 signatures with the Secretary.

After conducting a review of the petitions pursuant to the standards established by the 1989 amendments, the Secretary accepted 50,283 signatures. The Secretary rejected the remaining signatures, primarily on the following grounds: signatures by circulators and petition signers who were deemed not to be registered electors because they listed two residence addresses or because the residence addresses listed on the petitions differed from the residence addresses set forth on a master voting list maintained by the Secretary; circulator affidavits and petitions containing incomplete information; petitions to which were affixed circulator affidavits signed on dates different from the dates appearing on the corresponding notarization statements; and petitions containing extra staple holes.

On January 11, 1990, the Committee, in reliance on the curative provisions of section 1-40-109(2), 1B C.R.S. (1980), ⁴ filed petitions containing approximately 2,200 additional signatures in support of the initiative with the Secretary. On January 12, 1990, the Secretary rejected the additional signatures on the ground that the curative provisions of section 1-40-109(2) had been repealed by one of the 1989 amendments.

The Committee and appellee Pat R. Stealey filed protests to the Secretary's decision, ⁵ and the case was assigned to an administrative law judge (ALJ) for hearing, pursuant to section 24-4-105, 10A C.R.S. (1988). After conducting lengthy hearings, the ALJ issued an initial decision affirming in part and reversing in part the Secretary's rulings. The ALJ concluded that the 1989 amendments were applicable to activities relating to the initiative that took place after the title setting and that the Secretary was not barred by the doctrine of equitable estoppel from applying those amendments after their June 10, 1989, effective date. The ALJ basically affirmed the Secretary's rulings rejecting signatures, but overruled the Secretary's rejection of signatures on petitions containing additional staple holes.

The Committee and Stealey filed exceptions to the initial decision. The Secretary issued a final decision on May 31, 1990, affirming the ALJ's rulings except for the conclusion that signatures on petitions containing staple holes should have been allowed, which conclusion was reversed. The Committee sought judicial review of the Secretary's final decision, and the district court subsequently entered a judgment affirming that decision.

II

It is important to note the relatively limited scope of this appeal and the standards of review applicable thereto. It is axiomatic that in any appellate proceeding this court may consider only issues that have actually been determined by another court or agency and have been properly presented for our consideration. Dempsey v. Romer, 825 P.2d 44, 57 n. 13 (Colo.1992); Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, 415 n. 3 (Colo.1986); Colgan v. Department of Revenue, Div. of Motor Vehicles, 623 P.2d 871, 874 (Colo.1981); see Hy-vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 527 (Iowa 1990). Our standard of review is the standard applicable to initial district court review of agency action set forth in section 24-4-106, 10A C.R.S. (1988), which statute states in pertinent part as follows:

If [the court] finds that the agency action is arbitrary or capricious, a denial of statutory right, contrary to constitutional right, power, privilege, or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures or procedural limitations of this article or as otherwise required by law, an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial evidence when the record is considered as a whole, or otherwise contrary to law, then the court shall hold unlawful and set aside the agency action and shall restrain the enforcement of the order or rule under review, compel any agency action to be taken which has been unlawfully withheld or unduly delayed, remand the case for further proceedings, and afford such other relief as may be appropriate....

§ 24-4-106(7), 10A C.R.S. (1988). Thus, this court may determine that agency action is arbitrary or capricious, violative of constitutional rights, or constitutes an abuse of discretion. However, the right to appeal a decision of a district court sitting as a reviewing court pursuant to section 24-10-106 is not a right of appeal de novo.

In its complaint for review filed in the district court, the Committee asserted that the Secretary arbitrarily and capriciously abused the authority of that office by (1) declaring that the existence of extra staple holes in certain petitions created a presumption requiring the rejection of the signatures contained in such petitions; (2) rejecting petitions on the basis that the circulators thereof were not registered electors; (3) rejecting signatures because circulators and petition signers had supplied more than one address as their declared places of residence; (4) disallowing signatures because circulators and petition signers failed to supply all of the detailed information respecting residence addresses required by the 1989 amendments; and (5) rejecting signatures because the dates of circulator...