Fabec v. Beck, 94SA408

• Decision Date: 19 August 1996
• Docket Number: No. 94SA408,94SA408
• Parties: Robert W. FABEC, Kathy M. Donnelly, Marco G. Terry, and Clayton T. Marquez, Petitioners-Appellants/Cross-Appellees (Initiative Proponents), v. Richard A. BECK and Catherine A. Dickerson, Respondents-Appellees/Cross-Appellants (Initiative Protestors), and Natalie Meyer, Secretary of State of Colorado, Respondent-Appellee/Cross-Appellant.
• Court: Colorado Supreme Court

Page 330

922 P.2d 330

Robert W. FABEC, Kathy M. Donnelly, Marco G. Terry, and Clayton T. Marquez, Petitioners-Appellants/Cross-Appellees (Initiative Proponents), v. Richard A. BECK and Catherine A. Dickerson,

Respondents-Appellees/Cross-Appellants (Initiative

Protestors),

and

Natalie Meyer, Secretary of State of Colorado,

Respondent-Appellee/Cross-Appellant.

No. 94SA408.

Supreme Court of Colorado,

En Banc.

Aug. 19, 1996.

James E. Klodzinski, Trinidad, Craig Murdock, San Francisco, CA, for Petitioners-Appellants/Cross-Appellees.

Isaacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Juli E. Lapin, Denver, for Respondents-Appellees/Cross-Appellants.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Maurice G. Knaizer, Deputy Attorney General General, Legal Services Section, Denver, for Respondent-Appellee/Cross-Appellant.

Justice LOHR delivered the Opinion of the Court.

This case presents the issues of whether an initiative petition in support of a constitutional amendment authorizing limited gaming in Trinidad contains sufficient valid petition signatures to qualify for inclusion of the initiative on a statewide ballot, and whether the initiative proponents and initiative protestors complied with the statutory and administrative procedures that govern the petition and initiative process. After the Secretary of State (Secretary) issued an initial determination of insufficiency, the proponents submitted additional signatures in a supplemental petition, and the Secretary issued a formal letter of sufficiency. Both the proponents and the protestors sought judicial review of the Secretary's ruling. The district court reviewed the Secretary's signature count and determined that the Secretary erred as to 364 of the signatures by determining that they were valid. The district court held that without the invalidated signatures, the ballot initiative fell fifty-four signatures short of the constitutionally requisite number for inclusion on a statewide ballot. We affirm in part and reverse in part, reversing the district court's determination of invalidity as to ninety-two of the signatures. Accordingly, the initiative petition contains thirty-eight signatures more than the number of signatures necessary for inclusion on the statewide ballot, and we remand the case to the district court for further proceedings consistent with this opinion.

I.

On June 14, 1994, Robert W. Fabec, Kathy M. Donnelly, Marco G. Terry, and Clayton T. Marquez ("proponents") filed an initiative petition with the Secretary entitled "An amendment to the Colorado Constitution to permit limited gaming, subject to a future local vote, in original or reconstructed historic buildings in the National Historic District of the City of Trinidad and to allocate tax and fee revenues from such limited gaming." The petition contained 87,294 total signatures. Under standards prescribed by the Colorado Constitution, a petition required 49,279 valid signatures to be eligible for placement on the November 1994 ballot. The Secretary conducted a random sample and after determining by extrapolation that the petition contained approximately 44,080 valid signatures, or 89% of the required amount, issued a statement of insufficiency on June 30, 1994. ¹

The proponents sought to cure the deficiency by filing a supplemental petition on July 15, 1994. The Secretary then conducted a line-by-line review of each signature in both the original petition and the supplemental petition, and determined that the original petition actually contained 42,797 valid signatures and the supplemental petition contained 6,792 valid signatures. The Secretary concluded that the other 51,452 submitted petition signatures were invalid. Combining both the original and supplemental petitions, the Secretary determined that the proponents submitted a total of 49,589 valid signatures, or 310 more than the required amount. The Secretary therefore issued a statement of sufficiency on July 25, 1994. On August 23, 1994, Fabec filed a protest and complaint in Denver District Court challenging the Secretary's invalidation of certain signatures despite the Secretary's statement of sufficiency, and Richard A. Beck and Catherine A. Dickerson ("protestors") filed their own protest and complaint in that court a day later, contesting the Secretary's validation of certain other signatures. On motion, the district court consolidated the two cases.

After reviewing the Secretary's determinations, the district court invalidated 364 of the signatures the Secretary had validated. As a result, the petition fell fifty-four signatures short of the minimum necessary for placement on the 1994 ballot. Because the 1994 ballots had already been printed, the court enjoined the Secretary from counting any of the votes cast with regard to the initiative. The proponents filed an appeal and petition for review of the district court's ruling, ² and the protestors filed a cross-appeal. We review the district court's determinations on direct appeal pursuant to the jurisdictional authority set forth in section 1-40-119, 1B C.R.S. (1995 Supp.), and now affirm in part and reverse in part.

II.

We briefly review the procedure for initiating constitutional amendments, as established by the Colorado Constitution and statutes at the times relevant here, to set the stage for our discussion of the issues in this case. ³ "Article V, section 1(2) of the Colorado Constitution reserves to the registered electors of the State of Colorado the constitutional right to initiate legislation and constitutional amendments." Matter of Election Reform Amendment, 852 P.2d 28, 31 (Colo.1993); see also Colo. Const. art. V, § 1(2). In order to qualify for the ballot, initiative proponents must circulate initiative petitions and collect "signatures by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election." Colo. Const. art. V, § 1(2).

Prior to obtaining any signatures, the proponents must submit a draft of the proposed initiative "to the legislative research and drafting offices of the general assembly for review and comment." Colo. Const. art. V, § 1(5); accord § 1-40-105, 1B C.R.S. (1994 Supp.). After any subsequent amendments and again prior to obtaining any signatures, the proponents must submit the "full text" of the proposed initiative by petition, "addressed to and filed with the secretary of state at least three months before the general election at which [the initiative is] to be voted upon." Colo. Const. art. V, § 1(2); accord § 1-40-105(4), 1B C.R.S. (1994 Supp.). The Secretary then convenes a title board, which must prepare for the initiative a "proper fair title," a "submission clause," and a "clear, concise summary," which shall include an estimate and explanation of the prospective "fiscal impact" of the initiative. § 1-40-106, 1B C.R.S. (1994 Supp.).

Proponents then arrange to circulate copies of the initiative petition and accumulate the constitutionally requisite number of signatures from "registered electors." Colo. Const. art. V, § 1(2); § 1-40-111(1), 1B C.R.S. (1994 Supp.). The Secretary prescribes the form of the petition for statewide ballot issues. §§ 1-40-102, -113, 1B C.R.S. (1994 Supp.). "Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city and town, the county, and the date of signing." § 1-40-111(1), 1B C.R.S. (1994 Supp.); see also Colo. Const. art. V, § 1(6). The proponents must submit the circulated petitions to the Secretary accompanied by attached affidavits from the circulators attesting to the veracity of the signatures and the status of the signers as registered electors. Colo. Const. art. V, §§ 1(2), 1(6); see also §§ 1-40-111(2), -116(1), 1B C.R.S. (1994 Supp.). Section 1-40-111(2), 1B C.R.S. (1994 Supp.), mandates detailed verification of the collected signatures to maintain integrity in the initiative process and to comply with the constitutional requirements. See Colo. Const. art. V, § 1(6). A properly verified petition meeting constitutional requirements "shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors." Colo. Const. art V, § 1(6); see also § 1-40-116(1), 1B C.R.S. (1994 Supp.) (circulator affidavit is "prima facie evidence that the signatures are genuine and true, that the petitions were circulated in accordance with the provisions of this article , and that the form of the petition is in accordance with this article"). The Secretary then determines whether the proponents gathered the constitutionally requisite number of valid signatures for inclusion on the statewide ballot, § 1-40-116, 1B C.R.S. (1994 Supp.), and issues a statement of sufficiency or insufficiency, § 1-40-117, 1B C.R.S. (1994 Supp.). ⁴ If the Secretary issues a statement of insufficiency, the proponents "may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency." § 1-40-117(3)(b), 1B C.R.S. (1994 Supp.).

If the proponents gather the constitutionally requisite number of signatures, the Secretary must submit the proposed measure to the people "for adoption or rejection at the polls." Colo. Const. art. V, § 1(7). Prior to the election, however, the "nonpartisan research staff of the general assembly" must publish the text, title, and a "fair and impartial analysis" of each measure and must make that information available to the public. Colo. Const. art. V, §§ 1(7.3), 1(7.5); see also §§ 1-40-124, -124.5, 1B C.R.S. (1994 Supp.).

III.

The proponents initially contend that the protestors failed to...