Hoper v. City and County of Denver

• Decision Date: 18 January 1971
• Docket Number: No. 24986,24986
• Citation: 173 Colo. 390,479 P.2d 967
• Parties: C. H. HOPER, John B. Smith and Philip Milstein, individually, for others similarly situated, Plaintiffs-Appellees, v. CITY AND COUNTY OF DENVER, a municipal corporation, James T. Bayer, F. James Voss and F. J. Serafini, constituting the Election Commission for the City and County of Denver, Donald E. Barker, Harold N. Grimes, John Lopez, Ruth Weiner and Wayne N. Knox, individually and for others similarly situated, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 967

479 P.2d 967

173 Colo. 390

C. H. HOPER, John B. Smith and Philip Milstein individually, for others similarly situated Plaintiffs-Appellees, v. CITY AND COUNTY OF DENVER, a municipal corporation, James T Bayer, F. James Voss and F. J. Serafini, constituting the Election Commission for the City and County of Denver Donald E. Barker, Harold N. Grimes, John Lopez, Ruth Weiner and Wayne N. Knox, individually and for others similarly situated, Defendants-Appellants.

No. 24986.

Supreme Court of Colorado, En Banc.

Jan. 18, 1971.

Rehearing Denied Feb. 8, 1971.

Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, for plaintiffs-appellees and cross-appellants.

Max P. Zall, City Atty., Thomas A. Gilliam, Brian H. Goral, Asst. City Attys., for defendants-appellants City and County of Denver and its Election Commissioners.

Dawson, Nagel, Sherman & Howard, Denver, for appellants Barker, and others.

Donald P. MacDonald, Richard J. Bernick, Charles B. Howe, Denver, for appellant Wayne N. Knox.

DAY, Justice.

Suit was commenced in this action on June 9, 1970. The case is in the nature of a class action, pursuant to C.R.C.P. 23, and questions the validity of a charter amendment submitted to the voters of the City and County of Denver at an election held on Tuesday, September 10, 1968.

The case was originally filed against the City and County of Denver and the individual members of its Election Commission. When defendants Donald E. Barker, Harold N. Grimes, John Lopez and Ruth Weiner and defendant Wayne Knox sought to intervene, leave was given to file an amended complaint in the nature of a class action.

Plaintiffs below were C. H. Hoper, John B. Smith, and Philip Milstein and are appellees in this court representing that subclass of voters of Denver that question the validity of the charter amendment. Defendants below were the City and County of Denver, James T. Bayer, F. James Voss, and F. J. Serafini, constituting the Election Commission of Denver plus Donald E. Barker, Harold N. Grimes, John Lopez, Ruth Weiner, and Wayne N. Knox representing the subclass of the electorate of Denver who seek to uphold the validity of the charter amendment.

The case was submitted for decision to the trial court below on briefs and an agreed statement of facts without oral argument. The district court on November 12, 1970 rendered a two-pronged ruling and judgment declaring the charter amendment invalid. Timely appeal was filed. Since the close proximity of upcoming municipal elections dictated an early decision, an accelerated briefing and hearing schedule was granted by this court.

The facts, not in dispute, are briefly as follows:

At a special municipal election held on Tuesday, September 10, 1968, there was submitted to all qualified electors an amendment to Denver's home rule charter. The amendment carried by a vote of 48,293 in favor and 29,178 against. The amendment, as adopted, repealed certain provisions of the charter and, by enacting new Sections Cl.1--Cl.14, inclusive, provided for a new municipal election system. The primary and general municipal election dates were established, and the city council was directed to enact laws for the designation, nomination, and election of municipal officers. Such laws were to be as nearly identical to the general election laws of the State of Colorado as possible, and were also to provide for complete and public reporting of campaign expenditures and contributions. Elected or appointed incumbents were confirmed in office until successors are duly elected and qualified. The practical effect of these charter revisions was to convert the method of electing municipal officials from a non-partisan system (in effect since 1913) to a party-designate system similar to the method of electing state officials.

It was the holding of the trial court that:

(1) The grant of power to home rule cities in Colo.Const. art. XX, as amended, and relative to municipal elections is not restrictive, and thus the charter amendment adopted by the people of the City and County of Denver on September 10, 1968 creating partisan elections is constitutional. However,

(2) The ballot title under which the amendment was submitted to the people was invalid in that it failed to meet the requirement of Section Cl.19 of the Denver Charter requiring that a ballot title 'show the nature' of the charter amendment to be voted upon. The court further ruled that all ordinances enacted pursuant to the invalid amendment were enacted without legal authority under the charter and are therefore also invalid.

Defendants-Appellants appeal, urging that the judgment of the court below be reversed and the validity of the amendment sustained. Plaintiffs-Appellees are in agreement with the second finding of the lower court, but cross-appeal, urging that we reverse the judgment and hold that the amendment was violative of the state constitution. We affirm the district court judgment and are in accord with both rulings.

The arguments presented will be disposed of herein in the same order as in the court below.

I.

Plaintiffs-Appellees urge in their cross-appeal that the amendment in question be declared violative of the Colorado constitution, contending art. XX, § 6 limits home rule cities to non-partisan forms of government. The emphasized portion of the following quotation from art. XX, § 6 is cited by plaintiffs in support of their contention:

'(S)uch city or town, and the citizens thereof, shall have * * * all other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control:

* * *

* * *

d. All matters pertaining to municipal elections in such city or town, and to electoral votes therein on measures submitted under the charter or ordinances thereof, including the calling or notice and the date of such election ro vote, the registration of voters, nominations, nomination and election systems * * * the form of ballots * * * securing the purity of elections, guarding against abuses of the elective franchise, and tending to make such elections or electoral votes non-partisan in character.' (Emphasis added.)

In concluding that the above language did not restrict home rule cities to non-partisan elections, the lower court relied, in part, on the following language, also from art. XX, § 6:

'It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.' (Emphasis added.) See Newton v. City of Fort Collins, 78 Colo. 380, 241 P. 1114.

We interpret those provisions to mean that one of the specific powers granted to home rule cities was to 'Legislate upon, provide, regulate and control municipal elections' including the power (if desired to be exercised) to 'tend to make such elections or electoral votes non-partisan in character.' In other words the language does not limit home rule cities only to non-partisan elections. Had the framers desired to so limit local power it would have been very simple to so state. In the absence of a clear statement to the effect that municipalities are limited to nonpartisan elections, such meaning cannot and should not be inferred. We decline to impute meaning into language which, when read with attention to the expressed intent of the framers found in related sections, requires little or no interpretation to be fully understood. See Denver v. Mountain States Telephone & Telegraph Co., 67 Colo. 225, 184 P. 604. It is our belief that the language questioned by the plaintiffs, falling as it does after the word 'including,' is in the nature of an illustration of the powers that can be exercised by a municipality such as Denver under the provisions of article XX rather than a limitation upon such power. 'The purpose of the Twentieth Amendment was to extend the power of cities, not to further restrictions * * *.' Newton v. City of Fort Collins, Supra. See also Davis v. Pueblo, 158 Colo. 319, 406 P.2d 671.

The history of the home rule amendment (article XX) also mandates such interpretation. Article XX, added to the Colorado constitution in 1902, established Denver as a consolidated municipal government with home-rule powers. During the succeeding ten or so years, there was considerable controversy over the construction of the amendment. See Denver v. Mountain States Telephone & Telegraph Co., Supra. This controversy was based in major part upon the narrow judicial determination of what was a local or municipal matter and therefore within the control of a home-rule city. See, e.g., People ex rel. v. Cassiday, 50 Colo. 503, 117 P. 357; Denver v. Hallett, 34 Colo. 393, 83 P. 1066.

Then in April of 1912, this court, in the case of Mauff v. People, 52 Colo. 562, 123 P. 101, held that the City and County of Denver had, under article XX, only very limited power concerning the conduct and control of municipal elections, and that the Colorado constitution and general laws concerning the regulation, control and management of elections (which of course embodied a 'partisan' system) were fully applicable to Denver municipal elections. Subsequently, the people initiated and adopted in 1912 an amendment (commonly known as the 'Home Rule Amendment') to article XX, § 6 relevant portions of which were quoted above. The rationale and intended effect of this amendment has been interpreted as follows:

'It is a part of the history of the state that the people were disappointed, not to say more, at the restrictions put upon the powers of cities by this court's interpretations of article 20, and that the home rule amendment was the expression of that feeling.'...