Interrogatories Propounded by Senate Concerning House Bill 1078, In re

• Decision Date: 29 May 1975
• Docket Number: No. 26790,26790
• Citation: 536 P.2d 308
• Parties: In re INTERROGATORIES PROPOUNDED BY the SENATE CONCERNING HOUSE BILL 1078.
• Court: Colorado Supreme Court

Page 308

536 P.2d 308

189 Colo. 1

In re INTERROGATORIES PROPOUNDED BY the SENATE CONCERNING

HOUSE BILL 1078.

No. 26790.

Supreme Court of Colorado, En Banc.

May 29, 1975.

Rehearing Denied June 23, 1975.

David J. Hahn, Douglas G. Brown, Michael T. Risner, Denver, for proponents of Amendment No. 6

John R. Bermingham, Moran, Reidy & Voorhees, Denver, for proponents of Amendment No. 9.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Denver.

PRINGLE, Chief Justice, and GROVES, Justice:

At the general election in Colorado, held on November 5, 1974, among other propositions on the ballot were No. 6 and No. 9, being proposed constitutional amendments relating to reapportionment. Amendment No. 6 was addressed to several other subjects, while Amendment No. 9 was solely concerned with reapportionment. Amendment No. 6, referred by the General Assembly, received 386,284 affirmative votes; and there were 386,725 votes for Amendment No. 9, which had been initiated by petition. Thus, No. 9 received 441 more votes than did No. 6.

House Bill 1078, which if adopted would amend the boundary lines of certain state representative districts, is now pending in the First Regular Session of the Fiftieth General Assembly of Colorado. It has passed in the House of Representatives. After being passed upon second reading in the Senate, that body adopted Senate Resolution No. 17, being interrogatories which are contained in the appendix to this opinion. ¹ Our affirmative or negative answers follow each interrogatory in the appendix.

On and prior to November 5, 1974, Colo.Const. Art. V, §§ 46, 47 and 48 read as follows:

'Section 46. Senatorial and representative districts. The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States.

'Section 47. Composition of districts. Each district shall be as compact in area as possible and shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. Except when declared by the general assembly to be necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. When county boundaries are changed, adjustments, if any, in legislative districts, shall be as prescribed by law.

'Section 48. Revision and alteration of districts. (1) In the regular session of the general assembly in 1967, and at each such session next following official publication of each federal enumeration of the population of the state, the general assembly shall establish or revise and alter the boundaries of senatorial and representative districts according to the '(2) Each paragraph, sentence and clause of sections 45, 46, 47 and 48 shall be deemed to be severable from all other parts thereof and shall be interpreted to preserve, as the primary purpose thereof, the creation of single member districts. Nothing in said sections contained, nor any judgment or judicial declaration pertaining to sections hereby repealed, nor the failure of the State of Colorado to conduct a census in 1885 and subsequent years, shall affect the validity of laws at any time enacted by the general assembly or by the the people on any subject not directly pertaining to legislative districting or apportionment.'

provisions of sections 46 and 47. After forty-five days from the beginning of each such regular session, no member of the general assembly shall be entitled to or earn any compensation for his services or receive any payment for salary or expenses, nor shall any member be eligible to succeed himself in office, unless and until such revision and alteration shall have been made.

Portions of Amendment No. 6 read as follows:

'Section 46 of article V of the constitution of the state of Colorado is amended to read:

'Section 46. Senatorial and representative districts. The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively. EACH district in each house SHALL HAVE a population DEVIATING NO MORE THAN FIVE PERCENT FROM THE MEAN.

'Section 48 of article V of the constitution of the state of Colorado is amended to read:

'Section 48. Revision and alteration of districts. (1) NO LATER THAN THE REGULAR SESSION IMMEDIATELY following official publication of each federal enumeration of the population of the state, INCLUDING SUCH FEDERAL CENSUS STATISTICS THAT ARE NECESSARY TO REDISTRICT, the general assembly shall establish or revise and alter the boundaries of senatorial and representative districts according to the provisions of sections 46 and 47 OF THIS ARTICLE. After forty-five days from the beginning of each such regular session, no member of the general assembly shall be entitled to or earn any compensation for his services or receive any payment for salary or expenses, nor shall any member be eligible to succeed himself in office unless and until such revision and alteration shall have been made.

'(2) Each paragraph, sentence, and clause of sections 45, 46, 47 and 48 OF THIS ARTICLE shall be deemed to be severable from all other parts thereof and shall be interpreted to preserve, as the primary purpose thereof, the creation of single member districts. Nothing in said sections shall affect the validity of laws at any time enacted by the general assembly or by the people on any subject not directly pertaining to legislative districting or apportionment.'

In part Amendment No. 9 may be paraphrased as follows: That Section 46 be amended to allow for no more than 5% Deviation between the most populous and the least populous district in each House; that Section 47 be amended so that there are additional requirements in the creation of legislative districts (such as ethnic, cultural, economic and demographic factors); that Section 48 be repealed and reenacted to establish a reapportionment commission consisting of eleven members to be appointed and having specified qualifications; and that such commission shall adopt a plan fixing boundaries of senatorial and representative districts after each federal census of the United States.

Amendment No. 9 continues as follows:

'Within ninety days after the commission has been convened or the necessary census data the available, whichever is later, the commission shall publish a preliminary H.B. 1078 provides for the amendment of boundary lines in Representative Districts 40, 64 and 65. In submitting the interrogatories the Senate's principal purpose is to obtain an opinion as to the constitutionality of H.B. 1078.

plan for reapportionment of the members of the general assembly and shall hold public hearings thereon in several places throughout the state within forty-five days after the date of such publication. Within forty-five days after the completion of such hearings, the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination as to compliance with section 46 and 47 of this article. Such review and determination shall take precedence over other matters before the court. The supreme court shall adopt rules for such proceedings and for the production and presentation of supportive evidence for such plan. The supreme court shall either approve the plan or return the plan and the court's reasons for disapproval to the commission. If the plan is returned, the commission shall revise and modify it to conform to the court's requirements and resubmit the plan to the court within twenty days. If the plan is approved by the court, it shall be filed with the secretary of state for implementation no later than March 15 of the second year following the year in which the census was taken. The commission shall keep a public record of all the proceedings of the commission and shall be responsible for the publication and distribution of copies of each plan.'

We have considered four alternatives:

1. To declare Amendment No. 6 valid and Amendment No. 9 invalid.

2. To hold No. 9 valid and No. 6 invalid.

3. To adopt the position of the Attorney General and rule that both amendments are valid and can exist in harmony.

4. To rule that both amendments were validly adopted, but are so in conflict that each must fall.

We adopt the second alternative.

I

All those appearing before us in this matter are in agreement that the answer to Interrogatory No. 1 should be in the negative and that the answer to Interrogatory No. 2 should be in the affirmative. We concur.

Interrogatory No. 1 poses the question as to whether Amendment No. 9 became invalid because its ballot title and submission clause were not published in advance of the time that a qualified elector must file a motion for a change of wording and a hearing thereon. Section 1--40--102(3), C.R.S.1973. ²

Interrogatory No. 2 inquired as to whether Amendment No. 9 was valid even though there were minor differences between the text as submitted to the Secretary of State and the text contained in the petitions which were circulated.

II

We address ourselves to the question as to whether the two amendments are in conflict. In doing so, we are fully mindful that it is our duty, whenever possible, to give effect to the expression of the will of the people contained in constitutional amendments adopted by them. We have concluded that the two amendments are in conflict. The test for the existence of a conflict is: Does one authorize what the other forbids of forbid what the other authorizes? Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886.

The first direct, material conflict comes from the designation of the entity which acts with respect to reapportionment....