Groditsky v. Pinckney

• Citation: 661 P.2d 279
• Decision Date: 04 April 1983
• Docket Number: 82SA172,Nos. 82SA171,s. 82SA171
• Parties: Walt GRODITSKY, et al., Petitioners-Appellees, v. Darrell PINCKNEY, Respondent-Appellant, v. Floyd SACK, et al., Protestants-Appellants. Walt GRODITSKY, et al., Petitioners-Appellees, v. Thomas YOUNG, Respondent-Appellant, v. Floyd SACK, et al., Protestants-Appellants.
• Court: Supreme Court of Colorado

Page 279

661 P.2d 279

Walt GRODITSKY, et al., Petitioners-Appellees, v. Darrell PINCKNEY, Respondent-Appellant, v. Floyd SACK, et al., Protestants-Appellants.

Walt GRODITSKY, et al., Petitioners-Appellees, v. Thomas YOUNG, Respondent-Appellant, v. Floyd SACK, et al., Protestants-Appellants.

Nos. 82SA171, 82SA172.

Supreme Court of Colorado En Banc.

April 4, 1983.

Raule G. Nemer, Denver, for petitioners-appellees.

Calkins, Kramer, Grimshaw & Harring, Charles E. Norton, James S. Bailey, Jr., Denver, for respondents-appellants.

NEIGHBORS, Justice.

This is a consolidated appeal of the decision made by the district court sustaining petitions for the recall of the respondents and upholding the constitutionality of the statutory scheme providing for the recall of special district directors. ¹ We affirm.

I.

On March 5, 1982, petitions demanding the recall of Darrell Pinckney and Thomas Young (respondents) from their positions as directors of the Bancroft Fire Protection District were filed in the Jefferson County District Court pursuant to section 32-1-906, C.R.S.1973 (1982 Supp.). The grounds for recall alleged in the petitions were that the respondents failed to provide adequate manpower at district fire stations, created conflicts of interest by promoting their private business interests, attempted to undermine the district and replace it with a private company, attempted to undermine the civil service system by dismissing a civil servant, delayed hiring of firemen, and failed to follow the laws of this state in discharging their duties.

On March 16, 1982, the respondents filed protests to the petitions as permitted by section 32-1-906(3), C.R.S.1973 (1982 Supp.). They claimed that the allegations made in the recall petitions were false and that the recall procedure authorized by section 32-1-906, C.R.S.1973, was unconstitutional. The district court sustained the petitions and upheld the constitutionality of the statute. The court set the recall election for May 5, 1982. The election was held and the respondents were recalled from office.

II.

When faced with a constitutional challenge to a statute authorizing the recall of elected public officials, we must apply two fundamental legal principles. First, a statute is presumed to be constitutional. The person attacking the constitutionality of a legislative enactment must prove it is unconstitutional beyond a reasonable doubt. People v. Caponey, 647 P.2d 668 (Colo.1982); Mr. Lucky's, Inc. v. Dolan, 197 Colo. 195, 591 P.2d 1021 (1979); People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973). Second, the power of recall is a fundamental constitutional right of Colorado citizens and the reservation of this power in the people must be liberally construed. Hazelwood v. Saul, 619 P.2d 499 (Colo.1980); Bernzen v. City of Boulder, 186 Colo. 81, 525 P.2d 416 (1974); Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969).

A.

The respondents first argue that the recall provisions contained in article XXI of the Colorado Constitution do not apply to special district directors. We disagree for two reasons. First, the statute providing for the recall of special district directors is enabling legislation expressly authorized by section 4 of article XXI of the Colorado Constitution. Second, the recall of special district directors is a lawful subject for legislation enacted by the General Assembly because such legislation is not prohibited by article XXI of the Colorado Constitution.

The constitutional framework governing recall of elected public officials is contained in article XXI of the Colorado Constitution. Section 1 provides that "[e]very elective public officer of the state of Colorado may be recalled from office at any time by the electors ...." Section 1 governs the contents of the petition, the number of persons required to sign the petition, and vests in the electors the sole responsibility for judging the "legality, reasonableness and sufficiency" of the grounds for recall stated in the petition. Section 2 establishes the form of the recall petition and prescribes other requirements not involved in this case. In addition to promulgating other procedural requirements, section 4 provides that "[t]he recall may also be exercised by the electors of each county, city and county, city and town of the state, with reference to the elective officers thereof, under such procedure as shall be provided by law." The pertinent provisions of article XXI, section 4 of the Colorado Constitution applicable to this case state as follows:

"Every person having authority to exercise or exercising any public or governmental duty, power or function, shall be an elective officer, or one appointed, drawn or designated in accordance with law by any elective officer or officers, or by some board, commission, person or persons legally appointed by an elective officer or officers, each of which said elective officers shall be subject to the recall provision of this constitution....

....

"This article is self-executing, but legislation may be enacted to facilitate its operations, but in no way limiting or restricting the provisions of this article, or the powers herein reserved." (Emphasis added.)

Our decisions in Guyer v. Stutt, 68 Colo. 422, 191 P. 120 (1920), and Hall v. Cummings, 73 Colo. 74, 213 P. 328 (1923), construing section 4 and upon which the respondents rely, are not controlling in this case. The decisions announced in those cases have been limited to establishing the principle that subordinate levels of state government must enact enabling procedural legislation before their officials are subject to recall. Bernzen v. City of Boulder, 186 Colo. at 87 n. 1, 525 P.2d 416. To the extent that our decisions in Guyer v. Stutt, supra, and Hall v. Cummings, supra, hold that elective officers of subordinate units of state government may not be recalled under article XXI, section 4, those cases are overruled. ² We perceive the intent of the framers of the article XXI, section 4 of the Colorado Constitution to be clear: Every elective officer who discharges a governmental function is subject to recall, provided there is a constitutional provision or enabling legislation prescribing the procedure to be followed.

A recall provision in a constitution is intended as a reservation in the people of the power to recall any official without judicial interference. State ex rel. Riedman v. Baillie, 62 N.D. 705, 245 N.W. 466 (1932). "[Colorado's] constitution is an instrument of limitation of authority and is not an instrument which grants authority...." People ex rel. Union Trust Co. v. Superior Court, 175 Colo. 391, 394, 488 P.2d 66 (1971). Therefore, in the absence of an express or necessarily implied constitutional prohibition, the General Assembly has plenary powers of civil government. In the Interest of Y.D.M., 197 Colo. 403, 593 P.2d 1356 (1979); People ex rel. Tucker v. Rucker, 5 Colo. 455 (1880).

In analyzing the issue before us, we must determine only whether the legislature's enactment of the statute providing for the recall of special district directors and establishing the recall procedure is expressly or impliedly prohibited by the Colorado Constitution, not whether it is authorized. In Re Kindergarten Schools, 18 Colo. 234, 32 P. 422 (1893). The respondents, as special district directors, are not officers of a town, city, or county. They are officers of a quasi-municipal corporation and political subdivision of the State of Colorado. Sections 32-1-102 and 32-1-1001, C.R.S.1973 (1982 Supp.). There is no express or necessarily implied constitutional prohibition contained in article XXI, section 4 against including directors of special districts as elective officers who are subject to recall. See In Re Kindergarten Schools, supra.

B.

The respondents' next argument is that special district directors may be removed from office only in accordance with article XIII, section 3 of the Colorado Constitution, which provides: "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office in such manner as may be provided by law." The respondents claim that section 32-1-906, C.R.S.1973, is unconstitutional because it permits special district directors to be recalled for reasons which do not constitute misconduct or malfeasance in office.

Article XIII of the Colorado Constitution governs impeachment and removal of public officials from office. Section 1 establishes the procedure to be followed in impeachment proceedings. Section 2 enumerates the classes of state and judicial officers who are "liable to impeachment for high crimes or misdemeanors or malfeasance in office...." Section 3 provides for the removal of all other officers for "misconduct or malfeasance in office." Sections 2 and 3 contemplate removal from office for cause. Recall, on the other hand, may be used for a purely political reason. The purpose underlying recall of public officials for political reasons is to provide an effective and speedy remedy to remove an official who is unsatisfactory to the public and whom the electors do not want to remain in office, regardless of whether the person is discharging his or her duties consistent with his or her abilities and conscience. Dunham v. Ardery, 43 Okl. 619, 143 P. 331 (1914).

Our decision in People v. Losavio, 199 Colo. 212, 606 P.2d 856 (1980), provides an illustration of the difference between impeachment and removal for cause under article XIII of the Colorado Constitution and recall under article XXI. In Losavio, the public official-defendant was the district attorney. He was indicted for overspending his budget in violation of section 29-1-113, C.R.S.1973 (now in 1982 Supp. to 1977 Repl.Vol. 12). ³ Section 29-1-118, C.R.S.1973 (1977 Repl.Vol. 12), ⁴ provided that upon conviction, the person was to be removed from office. However, the statute applied only to "[a]ny member of the governing body of any county, city, or town...