Loonan v. Woodley
| Decision Date | 24 October 1994 |
| Docket Number | No. 94SA310,94SA310 |
| Citation | 882 P.2d 1380 |
| Parties | Peggy E. LOONAN, Jandel Theresa Allen-Davis, Michael D. Rudnick, and James A. McGregor, Plaintiffs-Appellees, v. William WOODLEY and Patricia Miller, Defendants-Appellants, and Natalie Meyer, in her official capacity as Secretary of State for the State of Colorado, Defendant. |
| Court | Colorado Supreme Court |
Rumler Davies, P.C., Joseph A. Davies, Cyndi L. Lyden, Denver, for defendants/appellants.
Isaacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Juli E. Lapin, Denver, for plaintiffs/appellees.
Gale A. Norton, Atty. Gen., Stephen K. Erkenbrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., for Natalie Meyer, Colorado Secretary of State.
Appellees Loonan, Allen-Davis, Rudnick and McGregor brought this action to challenge the sufficiency of initiative petitions circulated by appellants Woodley and Miller 1 that would require parental notification of an unemancipated minor's decision to have an abortion. Appellees' sole contention is that the appellants collected an insufficient number of valid signatures to include the initiative on the November 1994 ballot because the circulators' affidavits did not include the statement that the circulator "has read and understands the laws governing the circulation of petitions" as required by section 1-40-111(2), 1B C.R.S. (1994 Supp.).
The trial court agreed and entered an order (1) vacating the Secretary of State's determination of the sufficiency of the petition and (2) enjoining the Secretary from certifying the proposed initiative to the county clerks of Colorado for inclusion on the November 1994 ballot. Appellants appealed directly to this court under section 1-40-119, 1B C.R.S. (1994 Supp.), and we accepted the appeal. Appellants contend that they substantially complied with the statutory requirements and, alternatively, that the requirements in question are unconstitutional.
For the reasons stated below, we affirm the trial court's ruling.
Article 40, sections 1-40-101 to -133, 1B C.R.S. (1994 Supp.), establishes the statutory requirements for exercising the powers of initiative and referendum reserved to the people by Article V of the Colorado Constitution. Colo. Const. art. V, § 1. The statute prescribes the form of "initiative petitions for state legislation and amendments to the constitution" as required by section 1(2) of Article V and the requirements for "submi[ssion of] all measures initiated by or referred to the people for adoption or rejection at the polls" under section 1(6). Id. §§ 1(2), (6). At issue in this case are those provisions which govern the contents of the circulators' affidavits and the validation of a petition by the Secretary of State.
Section 1-40-111(2) requires that
To each petition section shall be attached a signed, notarized, and dated affidavit executed by the registered elector who circulated the petition section, which shall include ... [a statement] that he or she has read and understands the laws governing the circulation of petitions....
§ 1-40-111(2), 1B C.R.S. (1994 Supp.) (emphasis added). The underscored language was an amendment added by Senate Bill 93-135. See Ch. 183, sec. 1, § 1-40-111(2), 1993 Colo.Sess.Laws 676, 683-84. It became law on May 4, 1993, and applies to actions taken after that date. Id. at 699. Section 113(1) provides that "[a]ny petition section which fails to conform to the requirements of this article or is circulated in a manner other than that permitted in this article shall be invalid." § 1-40-113(1), 1B C.R.S. (1994 Supp.) (emphasis added). This language predated the 1993 amendments and was reenacted and recodified by Senate Bill 93-135 without significant change. Ch. 183, sec. 1, § 1-40-113(1), 1993 Colo.Sess.Laws 676, 684.
Appellants Woodley and Miller sponsored a petition to amend the Colorado Constitution pursuant to these statutory and constitutional provisions. The petition was entitled "Parental Involvement" and would require parental notification when an unemancipated minor under eighteen years of age decided to have an abortion. Prior to circulating the petition, Woodley and Miller received copies of the Secretary of State's Initiative Manual. The manual incorporated a sample circulator's affidavit with all language required under the amended section 111(2), and which reprinted the text of section 111(2). The petitions that Woodley and Miller actually circulated, however, used circulators' affidavits based upon a form used in previous petition campaigns rather than the affidavit form included in the manual. 2 None of these affidavits included a statement that the circulator "read and understands the laws governing the circulation of petitions" as required by section 111(2).
Despite the missing language on the circulators' affidavits, the Secretary of State issued a Sufficiency Determination which indicated that the petitions fulfilled the statutory requirements and directed that the proposed amendment would appear on the November 8, 1994, ballot.
We will begin by addressing the sufficiency of the petitions under sections 111(2). Woodley and Miller assert that compliance with election regulations must be judged on a "substantial compliance" standard rather than according to the strict compliance standard imposed by the trial court. The circulators' affidavits attached to each "Parental Involvement" petition substantially complied with the requirements of section 111(2), appellants argue, and thus the signatures were valid under the statute. While we agree that conformity with the statutory requirements for initiatives and referenda must be determined on the basis of substantial compliance, we do not agree that Woodley and Miller achieved substantial compliance in this instance.
The right of initiative and referendum, like the right to vote, is a fundamental right under the Colorado Constitution. See Clark v. City of Aurora, 782 P.2d 771, 777 (Colo.1989) (right of initiative); Meyer v. Lamm, 846 P.2d 862 (Colo.1993) (right to vote). 3 Likewise both the right to vote and right of initiative have in common the guarantee of participation in the political process. See McKee v. City of Louisville, 616 P.2d 969, 972 (Colo.1980) () In light of the nature and seriousness of these rights, we have held that constitutional and statutory provisions governing the initiative process should be "liberally construed" so that "the constitutional right reserved to the people 'may be facilitated and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right.' " Montero v. Meyer, 795 P.2d 242, 245 (Colo.1990) (citations omitted). Similarly, we have found that "the exercise of the voting right [should not] be conditioned upon compliance with a degree of precision that in many cases may be a source of more confusion than enlightenment to interested voters." Lamm, 846 P.2d at 875 (citing Erickson v. Blair, 670 P.2d 749, 754 (Colo.1983)).
In the voting rights context we have held that the rule of "substantial compliance" provides the appropriate level of statutory compliance to "facilitate and secure, rather than subvert or impede, the right to vote." Lamm, 846 P.2d at 875 (citation omitted). While we have never explicitly held that the rule of substantial compliance is the appropriate standard for gauging adherence to statutes regulating the right of initiative and referendum, we have upheld petitions which "disclose[d] a substantial compliance with the statutory provisions." Brownlow v. Wunsch, 103 Colo. 120, 132, 83 P.2d 775, 781 (1938). Given the similar nature of the right to vote and the right of initiative and referendum, and the common statutory goal of inhibiting fraud and mistake in the process of exercising these rights, we now hold that substantial compliance is the appropriate standard to apply in the context of the right to initiative and referendum.
This court recently addressed the issue of substantial compliance under the election regulations of Article X, section 20 of the Colorado Constitution, commonly known as "Amendment 1," in Bickel v. City of Boulder, No. 94SA130, 1994 WL 493708 (September 12, 1994). In Bickel we held that
[i]n determining whether a district has substantially complied with a particular provision of Amendment 1, courts should consider factors including, but not limited to, the following: (1) the extent of the district's non-compliance in the particular ballot issue before the court, that is, a court should distinguish between isolated examples of district oversight and what is more properly viewed as systematic disregard for Amendment 1 requirements, (2) the purpose of the provision violated and whether that purpose is substantially achieved despite the district's noncompliance, and (3) whether it can reasonably be inferred that the district made a good faith effort to comply or whether the district's noncompliance is more properly viewed as the product of an intent to mislead the electorate.
Id. at 17-18. Taking these factors into consideration, and finding the second factor dispositive, we struck down a portion of a ballot issue that would have allowed the City of Boulder to increase ad valorem property taxes in the event that sales and use taxes were insufficient to pay the principal and interest on proposed bonds. We struck down the proposed tax increase because the ballot title failed to provide a dollar estimate of the proposed increase despite the City's compliance with the ballot requirements in all other respects, and despite the unlikelihood that it would ever be necessary to increase the...
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