Davidson v. McClellan

• Citation: 16 P.3d 233
• Decision Date: 22 January 2001
• Docket Number: No. 99SA240.,99SA240.
• Parties: Donetta DAVIDSON, Colorado Secretary of State, and George Dibble, Defendants/Appellants, v. Molly McCLELLAN; Charles Mitchell; Marilyn Ferrari; Al Ferrari; Marie Carney; Patricia Farmer; Mary Blue; Anita Gail; Jackie Ragno; Jack Hawkins; and Craig Eley, Plaintiffs/Appellees.
• Court: Supreme Court of Colorado

16 P.3d 233

Donetta DAVIDSON, Colorado Secretary of State, and George Dibble, Defendants/Appellants, v. Molly McCLELLAN; Charles Mitchell; Marilyn Ferrari; Al Ferrari; Marie Carney; Patricia Farmer; Mary Blue; Anita Gail; Jackie Ragno; Jack Hawkins; and Craig Eley, Plaintiffs/Appellees.

No. 99SA240.

Supreme Court of Colorado, En Banc.

January 22, 2001.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, CO, Attorney for Defendant-Appellant Donetta Davidson.

Mark Bender, John W. Berry, Denver, CO, Attorneys for Defendant-Appellant George Dibble.

Law Office of Neil O'Toole, P.C., Neil D. O'Toole, Denver, CO, Attorney for Plaintiffs-Appellees. Justice COATS delivered the Opinion of the Court.

The Colorado Secretary of State and a citizen-opponent of the 1992 "Safe Work Place Amendment" initiative appeal from the June 1999 order of the Denver District Court, granting a motion to vacate the court's judgment of May 26, 1994, and ordering the Secretary to reexamine the petitions gathered by nonregistered circulators in 1992. The district court's initial judgment affirming the Secretary's decision to exclude the initiative from the 1992 ballot was itself affirmed by this court. McClellan v. Meyer, 900 P.2d 24 (Colo.1995). Under the circumstances of this case, the subsequent decision of the United States Supreme Court in Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), holding Colorado's registered circulator requirement unconstitutional, was not a sufficient basis to vacate the final judgment pursuant to C.R.C.P. 60(b)(5), and therefore the order of the district court is reversed.

I.

The dispute in this case involved Colorado constitutional and statutory provisions as they existed in 1992, reserving to the people of the state the power to propose laws and amendments to the state constitution by initiative petition and specifying the way in which that could be done. Among other things, these provisions required that the proponents gather a certain number of signatures of registered voters (registered voter requirement) supporting placement of the measure on the ballot, Colo. Const., art. V, § 1(2); § 1-40-106(2)(a), 1B C.R.S. (Supp. 1992), and that the circulators of the petitions themselves be registered voters (registered circulator requirement), Colo. Const., art. V, § 1(6); § 1-40-106(3), 1B C.R.S. (Supp. 1992). The common feature of this case and the cases relied on by the Denver District Court in granting the plaintiffs' motion to vacate was a challenge to either the validity or application of various requirements for successfully placing a citizen-initiated measure on the Colorado election ballot.

This particular case arose from the Secretary of State's determination that an insufficient number of valid signatures supported the proposed "Safe Work Place Amendment" to Article II of the Colorado Constitution, presented to her on August 3, 1992. The proponents of the initiative protested this decision according to Colorado law, see § 1-40-109(1)(c), 1B C.R.S. (Supp.1992), and the state review proceedings followed an unremarkable path. The matter was assigned for hearing to an administrative law judge, whose conclusion that the signatures were insufficient was affirmed by a final decision of the Secretary of State. Judicial review of that decision was sought in the Denver District Court, and the district court's judgment affirming the Secretary was in turn affirmed by this court on direct appeal. However, because some of the plaintiffs in the case, and others with similar interests and objectives, challenged some of the same provisions and their later amendments in the federal courts in at least three different cases, the procedural history of the entire set of challenges to Colorado's initiative process is quite extensive and convoluted.

On August 25, 1992, when the Secretary initially struck a number of signatures on various statutory grounds, she was already enjoined from enforcing the registered circulator requirement by an injunction in an unrelated federal case, Am. Constitutional Law Found. v. Meyer, No. 92-N-69 (D.Colo. Jan. 1992). She therefore did not exclude signatures gathered by unregistered circulators at that time. The plaintiffs filed a timely protest to the Secretary's decision according to Colorado law, but also, on September 15, 1992, some of the proponents of the initiative, along with a public interest organization that supports direct democracy, called the American Constitutional Law Foundation (ACLF), filed an action for declaratory and injunctive relief in the federal court, challenging the provisions under which the Secretary had excluded signatures from the "Safe Work Place Amendment" petitions. See Am. Constitutional Law Found., Inc. v. Meyer, No. 92-N-1828 (D.Colo.1992).¹ On February 16, 1993, the administrative law judge hearing the protest issued a decision, counting some of the signatures rejected initially by the Secretary but nevertheless affirming her decision to exclude the initiative from the ballot. Like the Secretary, the ALJ also did not enforce the registered circulator requirement. However, on February 17, 1993, the federal district court dismissed case no. 92-N-69 for failure of the plaintiffs to prosecute, thereby dissolving its injunction against enforcing the registered circulator requirement. Therefore, when the Secretary issued her final opinion on the "Safe Work Place Amendment" on June 23, 1993, she not only affirmed the ALJ's count but also excluded an additional number of signatures as violating the registered circulator requirement. The proponents of the initiative sought review of the Secretary's final agency action in the Denver District Court.

In July 1993, several of the proponents of the "Safe Work Place Amendment," and other individuals and groups unrelated to the "Safe Work Place Amendment," filed a new action for declaratory and injunctive relief in the federal court, then designated American Constitutional Law Foundation v. Meyer, No. 93-M-1467.² This new federal action challenged a new statute amending Colorado's requirements for citizen-initiated measures. See SB 93-135, ch. 183, sec. 1, §§ 1-40-101 to 133, 1993 Colo. Sess. Laws 676, 676-96. In addition, in August 1993, the plaintiffs in case no. 92-N-1828, the federal case filed contemporaneously with the Secretary's initial exclusion of signatures from the "Safe Work Place Amendment" petitions, moved to enjoin the Secretary from enforcing the registered circulator requirement³, the former injunction against enforcing this provision having been dismissed along with case no. 92-N-69 in February.

On May 16, 1994, in the order at issue in this appeal, the Denver District Court affirmed the Secretary's determination that the "Safe Work Place Amendment" petitions lacked sufficient signatures, although it disagreed about a number of her exclusions, and the plaintiffs appealed that decision directly to this court. While the proponents challenged a number of the practices and standards used by the Secretary, they did not challenge the constitutionality of the registered circulator requirement. Instead, they limited themselves in this regard to a claim that the Secretary was bound by the federal injunction that existed at the time the signatures were presented, and that enforcing the registered circulation requirement after the injunction was lifted amounted to application of an ex post facto law. About one year later, on June 26, 1995, this court affirmed the judgment of the Denver District Court. McClellan v. Meyer, 900 P.2d 24 (Colo.1995).

While McClellan v. Meyer⁴ was pending in the Colorado courts, both of the remaining federal cases challenging the Colorado initiative provisions were resolved by federal district courts in favor of the Secretary. In February 1994, the federal district court dismissed case no. 92-N-1828 on the grounds that the statutory amendments in SB 93-135 rendered the case moot. In November 1994, the federal district court in case no. 93-M-1467 ruled that the registered circulator requirement did not violate the United States Constitution. However, this did not end the matter.

On June 23, 1997, almost two years after this court's holding in McClellan v. Meyer, the Tenth Circuit Court of Appeals reversed the dismissal of federal case no. 92-N-1828 and remanded for further proceedings, holding that although the plaintiffs' First Amendment claim against Colorado's registered circulator requirement should perhaps be barred for their failure to raise it in the Colorado courts, the case should not have been dismissed either as moot or on abstention grounds. Am. Constitutional Law Found. v. Meyer, No. 94-1145, slip op. at *11-12, 1997 WL 282874 (10th Cir. May 29, 1997)(unpublished). One month later, on June 28, 1997, the Tenth Circuit also reversed the federal district court's judgment in case no. 93-M-1467, holding instead that Colorado's registered circulator requirement was indeed unconstitutional. See Am. Constitutional Law Found. v. Meyer, 120 F.3d 1092, 1100 (1997)

. It was this holding that was eventually upheld by the United States Supreme Court in January 1999, nearly four years after a final judgment in the instant case. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999).

In March 1999, the federal district court ruled in favor of the plaintiffs in the remanded case no. 92-M-1828, on the basis of the holding in Buckley. It granted the requested declaratory relief concerning Colorado's registered circulator requirement, echoing the Supreme Court, but did not grant injunctive relief against the Secretary. The proponents of the "Safe Work Place Amendment" therefore returned to the Denver District Court in April 1999, moving pursuant to C.R.C.P. 60(b) to vacate the judgment in the instant case on the basis of the federal district court action in ...