Danielson v. Dennis, No. 06SA174.

• Citation: 139 P.3d 688
• Decision Date: 31 July 2006
• Docket Number: No. 06SA174.
• Parties: Pastor Michael DANIELSON, Colorado Criminal Justice Reform Coalition, and Colorado-Cure, Plaintiffs-Appellants v. Gigi DENNIS, in her official capacity as Secretary of State for the State of Colorado, Defendant-Appellee.
• Court: Supreme Court of Colorado

139 P.3d 688

Pastor Michael DANIELSON, Colorado Criminal Justice Reform Coalition, and Colorado-Cure, Plaintiffs-Appellants v. Gigi DENNIS, in her official capacity as Secretary of State for the State of Colorado, Defendant-Appellee.

No. 06SA174.

Supreme Court of Colorado, En Banc.

July 31, 2006.

Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Norman R. Mueller, Ty Gee, American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Denver, Colorado, Attorneys for Plaintiffs-Appellants.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Maurice G. Knaizer, First Assistant Attorney General, Denver, Colorado, Attorneys for Defendant-Appellee.

John W. Suthers, Attorney General, Paul Sanzo, First Assistant Attorney General, Civil Litigation and Employment Law Section, Denver, Colorado, Attorneys for Amicus Curiae Governor Bill Owens, the Colorado State Board of Parole, and the Colorado Department of Corrections.

Justice HOBBS delivered the Opinion of the Court.

Pursuant to section 1-1-113(3), C.R.S. (2005), we accepted jurisdiction in this appeal to determine whether section 1-2-103(4), C.R.S. (2005), unconstitutionally conflicts with article VII, section 10 of the Colorado Constitution. Section 1-2-103(4) prohibits Colorado parolees from registering to vote and voting. Article VII, section 10 provides that persons who were qualified electors prior to their imprisonment and who have served their full term of imprisonment, shall have their rights of citizenship restored to them.¹

In dismissing the petition and complaint in this case, the District Court for the City and County of Denver ruled in favor of the Colorado Secretary of State that the statute is not unconstitutional because it does not conflict with the constitutional provision. We agree.

We hold that the General Assembly did not violate article VII, section 10 of the Colorado Constitution by enacting a law that prevents a person who has been convicted of a felony and is serving a sentence of parole from voting or registering to vote. A person who is serving a sentence of parole has not served his or her full term of imprisonment within the meaning of this constitutional provision. Appellants have not borne their burden of clearly demonstrating that section 1-2-103(4), C.R.S. (2005), is unconstitutional.

Accordingly, we affirm the judgment of the district court.

I.

In the trial court, Pastor Michael Danielson ("Danielson"), the Colorado Criminal Justice Reform Coalition ("CCJRC"), and Colorado-CURE challenged the constitutionality of section 1-2-103(4), C.R.S. (2005), by means of a petition under section 1-1-113, C.R.S. (2005), of the Colorado Uniform Election Code and a complaint for declaratory judgment under section 13-51-101 to -115, C.R.S. (2005).

The trial court found the following facts to be undisputed. Danielson was sentenced to the Colorado Department of Corrections for a felony conviction and is now on parole. Except for his status as a parolee, he is an eligible elector of the State of Colorado who wants to register to vote and cast his ballot in local, state, and national elections. The Colorado Secretary of State, however, will not allow him to do this because section 1-2-103(4) provides that "[n]o person . . . serving a sentence of parole shall be eligible to register to vote or to vote in any election."

CCJRC and Colorado-CURE are not-for-profit Colorado corporations whose members include persons who are on parole and would be eligible to vote were it not for the statute and the Secretary of State's enforcement of it.

The Appellants (collectively "Danielson") sought a declaration of the statute's unconstitutionality and an injunction against its enforcement.² Secretary of State Dennis filed a motion to dismiss under C.R.C.P. 12(b)(5). In granting this motion and dismissing the case, the trial court ruled that section 1-2-103(4) does not conflict with article VII, section 10 of the Colorado Constitution. On appeal, we accepted jurisdiction under section 1-1-113(3) to review the trial court's judgment.

We affirm the judgment.

II.

We hold that the General Assembly did not violate article VII, section 10 of the Colorado Constitution by enacting a law that prevents a person who has been convicted of a felony and is serving a sentence of parole from voting or registering to vote. A person who is serving a sentence of parole has not served his or her full term of imprisonment within the meaning of this constitutional provision. Appellants have not borne their burden of clearly demonstrating that section 1-2-103(4), C.R.S. (2005), is unconstitutional.

A. Standard of Review

Article VI, section 1 of the Colorado Constitution charges the judicial branch with construing the meaning of the constitution; our review is de novo. Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, 581 (Colo. 2004); E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo.2004).

We approach the potential invalidation of legislative acts cautiously. See People ex rel. Tucker v. Rucker, 5 Colo. 455, 458 (1880). We presume that a statute is constitutional. Garhart, 95 P.3d at 581. In order to overcome this presumption, the person alleging a conflict between the legislative act and a constitutional provision must establish that "[t]he precise point of conflict between the statute and the constitution — state or national — . . . appear[s] plain, palpable, and inevitable, or else the act of the general assembly must be held to prevail." Union Pac. Ry. Co. v. De Busk, 12 Colo. 294, 303, 20 P. 752, 756 (1889); Garhart, 95 P.3d at 581 ("[U]nless the conflict between the constitution and the law is clear and unmistakable, we will not disturb the statute.").

The party challenging the validity of a statute is required to prove it is unconstitutional beyond a reasonable doubt; a statute is facially unconstitutional only if no conceivable set of circumstances exists under which it may be applied in a permissible manner. People v. M.B., 90 P.3d 880, 881 (Colo.2004). In giving effect to a constitutional provision, we employ the same set of construction rules applicable to statutes; in giving effect to the intent of the constitution, we start with the words, give them their plain and commonsense meaning, and read applicable provisions as a whole, harmonizing them if possible. Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1273 (Colo. 2001).

B.

This Constitutional Challenge

Section 1-2-103(4), C.R.S. (2005), provides that:

No person while serving a sentence of detention or confinement in a correctional facility, jail or other location for a felony conviction or while serving a sentence of parole shall be eligible to register to vote or to vote in any election . . . .

(Emphasis added.)

Article VII, sec. 10 of the Colorado Constitution states:

No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution.

(Emphasis added.)

On both sides, the arguments in this case are based on the words of the constitutional provision. Danielson contends that the words require restoration of the franchise when the person convicted of the crime is no longer in confinement within prison walls. Secretary of State Dennis responds that the words must be read as a whole; that the phrase "having served out his full term of imprisonment" includes that part of a person's punishment involving the constraints of parole outside of prison walls. We agree with Secretary Dennis.

Danielson argues for a strict version of the constitutional word "imprisonment" to mean only confinement within a prison. But the power under the constitution to criminalize conduct and set the punishment for a crime resides within the legislative branch; absent a constitutional infirmity, we have no basis to interfere with the exercise of that power. People v. M.B., 90 P.3d at 882.

Of course we agree with Danielson that parole did not exist at the time Colorado adopted its constitution, but this does not mean that the General Assembly was constrained from punishing crimes with sentences that include custody while the convicted person is being transitioned to community and before restoration of his or her full rights.

At the time our constitution was adopted, the then-current penal practice was for set terms of confinement within prison; the executive had pardoning authority for early release.³ 4 Department of Justice, The Attorney General's Survey of Release Procedures 14 (Wayne L. Morse et al. eds., 1939).

The advent of indeterminate sentencing in the late 1800s changed this; a maximum sentence was imposed with the possibility of earlier release. See id. at 20-21. A shift in penal philosophy accompanied indeterminate sentencing. Criminal sentencing included rehabilitating offenders for re-introduction into society. Charles L. Newman, Sourcebook on Probation, Parole and Pardons 17 (3d ed.1968).

Sentencing to parole commenced in New York in 1876 with release, under supervision, from reformatories. See The Attorney General's Survey of Release Procedures, supra, at 19-20; Newman, supra, at 33-34. Prisoners remained under supervision for six months after release. The Attorney General's Survey of Release Procedures, supra, at 19-20. The reformatory attached conditions to release and could revoke parole if the convict violated terms of the parole. Id. at 20. By 1910, thirty-two states had adopted parole statutes; by 1922, forty-four states. Id.

Colorado first adopted parole sentencing in 1899. See Act approved May 3, 1899, ch. 104, 1899 Colo. Sess. Laws 233. Under this provision, the Governor had authority to parole convicts serving...