Lorenz v. State

• Decision Date: 03 December 1996
• Docket Number: No. 96SA8,96SA8
• Citation: 928 P.2d 1274
• Parties: 20 Colorado Journal 1769 Wilhelm LORENZ, Bruce Schmalz and Tom Tyslan, Plaintiffs-Appellants, v. STATE of Colorado, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1274

928 P.2d 1274

20 Colorado Journal 1769

Wilhelm LORENZ, Bruce Schmalz and Tom Tyslan, Plaintiffs-Appellants, v. STATE of Colorado, Defendant-Appellee.

No. 96SA8.

Supreme Court of Colorado En Banc.

Dec. 3, 1996.

Isaacson, Rosenbaum, Woods & Levy, P.C. Edward T. Ramey, Theresa L. Corrada, Denver, for Plaintiffs-Appellants.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General Paul Farley, Deputy Attorney General, Larry A. Williams, First Assistant Attorney General, Thomas D. Fears, Assistant Attorney General, Denver, for Defendant-Appellee.

Justice KOURLIS delivered the Opinion of the Court.

The issue in this case is whether section 12-47.1-804(1), 5B C.R.S. (1996 Supp.), ¹ of the Limited Gaming Act of 1991 (the Act), which prohibits certain elected and appointed officials from holding an interest in a gaming license, violates the Constitutions of the United States and the State of Colorado (State). The case is before us on certification from the court of appeals. We conclude that the section does not impermissibly burden candidates' or voters' rights and thus, we affirm the trial court's order granting the State's motion to dismiss.

I.

Plaintiff Wilhelm Lorenz was elected mayor of Black Hawk in 1986 and reelected in 1990 for a second term. During his second term, Lorenz applied for a key employee license. ² Because of the impact of section 12-47.1-804(1), Lorenz resigned as mayor in order to be granted the license. In the summer of 1993, Lorenz contacted the Black Hawk City Clerk in order to become a candidate for the Black Hawk City Council. The clerk allegedly denied Lorenz's request to have his name placed on the ballot because he had an interest in a casino which was licensed as a retailer under the Act.

Plaintiff Bruce Schmalz was elected mayor of Central City in 1986 and reelected in 1990 to a second term. Schmalz was also a member of the Central City Planning Commission. In 1991, members of Schmalz's family formed Dostal Alley, Inc., a Colorado corporation. Schmalz and his family then submitted applications for gaming licenses for themselves and the corporation to the Colorado Limited Gaming Control Commission (the Commission). In a letter dated September 6, 1991, Schmalz informed the Commission that he was not involved in the corporation, but that he owned the building which housed the corporation and leased a portion of the building to the corporation for a flat fee. Schmalz claims that he was informed by an inspector for the Commission that he had to resign as mayor in order for Dostal Alley, Inc., to receive its licenses. Schmalz resigned as mayor of Central City and as a member of the Central City Planning Commission on September 19, 1991.

Plaintiff Tom Tyslan is a resident of the City of Black Hawk. Tyslan claims that he is interested in seeking public office someday. Tyslan also claims that in the 1994 spring election he was unable to vote for the candidates of his choice because those candidates held gaming licenses and were thus not eligible to run for office.

On June 10, 1994, Lorenz, Schmalz, and Tyslan (the Plaintiffs) filed a complaint against the State in Denver District Court seeking declaratory relief. ³ At the time the complaint was filed, Lorenz and Schmalz held key employee licenses and Tyslan held a support license. Lorenz was also an officer, director, and part owner of Black Forest Inn, Inc. Black Forest Inn, Inc., held an operator license and owned two casinos, both licensed as retailers under the Act. Schmalz was a director, officer, and shareholder of Dostal Alley, Inc., which was also licensed as an operator and a retailer.

In their complaint, the Plaintiffs charged that section 12-47.1-804(1) violated the following federal and state constitutional rights: (1) the rights of free expression, association, and political participation under the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution; (2) the right to run for public office, the right to hold public office, and the fundamental right to vote under the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution and article II, section 25 of the Colorado Constitution; and (3) the due process right to be free from impermissibly vague prohibitions under the First and Fourteenth Amendments to the United States Constitution and article II, sections 10 and 25, of the Colorado Constitution.

The State filed a motion to dismiss on August 18, 1994, and the Plaintiffs filed a motion for summary judgment on September 13, 1994. On October 24, 1995, after considering both motions, the trial court granted the State's motion. The trial court held that section 12-47.1-804(1) was a condition to licensure and did not bar the Plaintiffs from holding public office.

The Plaintiffs appealed the trial court's decision to the court of appeals. On joint motion of the parties, the court of appeals filed a request in this court for determination of jurisdiction, and we accepted the case pursuant to section 13-4-109(2), 6A C.R.S. (1987). ⁴

II.

The threshold question in this case is whether section 12-47.1-804(1) impermissibly impacts the exercise of any constitutional right. Generally, constitutional review of equal protection and substantive due process claims involves a determination of whether the right being abridged is fundamental or not: if it is, then the courts are called upon to strictly scrutinize the offending restriction. People v. Young, 859 P.2d 814, 818 (Colo.1993) (substantive due process analysis); Dove v. Delgado, 808 P.2d 1270, 1274 (Colo.1991) (equal protection analysis). If it is not, then the restriction must only bear a rational relationship to a legitimate state objective in order to survive constitutional muster. Young, 859 P.2d at 818; Dove, 808 P.2d at 1274.

That inquiry is conclusory and of limited utility in the context of ballot access cases. As we noted in Colorado Libertarian Party v. Secretary of State, 817 P.2d 998, 1001 (Colo.1991), cert. denied, Colorado Libertarian Party v. Meyer, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992), in assessing the constitutionality of ballot access restrictions, sometimes the courts apply strict scrutiny and sometimes a more flexible standard. Regardless of which standard they apply, what the courts consistently analyze is the severity and character of the alleged injury. If the magnitude of the impact is severe, or if the restriction operates to exclude candidates on the basis of wealth or political affiliation, then considerably more exacting scrutiny is brought to bear. Clements v. Fashing, 457 U.S. 957, 964-66, 102 S.Ct. 2836, 2844-45, 73 L.Ed.2d 508 (1982) (plurality opinion). In short, we must apply a balancing test which weighs the restriction against the state interest. If the restriction is severe in impact or in character, then the state must put forth counterbalancing interests of greater weight in order to sustain the restriction. See Anderson v. Celebrezze, 460 U.S. 780, 788-89, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983). If the restriction is not severe in impact or character, then the state's interests may be of lesser weight or probity. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 2063-64, 119 L.Ed.2d 245 (1992).

Plaintiffs here assert that section 12-47.1-804(1) impermissibly abridges a candidate's right of access to the ballot and to hold office, and a voter's right of political association, political expression, and choice of candidates. ⁵ They argue that the statute deters candidacy because many potential candidates cannot afford to surrender an interest in a gaming license, and thus do not run for office. ⁶ Similarly, they argue that the voters are severely impacted because they are denied the right to vote for a significant number of potential candidates.

The State argues that section 12-47.1-804(1) does not actually hinder access to the ballot, nor does it restrict the right to cast a vote, but rather only restricts an elected official's conduct.

A.

Typical ballot access cases involve governmental action that directly restricts a candidate's ability to obtain a place on the ballot. ⁷ Here, the only burden arguably imposed is the indirect risk of losing an interest in a gaming license. Although those potential candidates who are unwilling to risk losing an interest in gaming licenses may decide not to run, requiring candidates to make this decision impacts them indirectly only. ⁸

Nonetheless, we recognize that the restriction may create a very real, if indirect, impact on some potential candidates and therefore analyze it as if it were a direct restriction on access to the ballot. See NAACP v. Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).

We begin our analysis by noting that access to the ballot for a prospective candidate is frequently statutorily or constitutionally burdened by conditions such as residency, age, filing fees, filing deadlines, and signature requirements. ⁹ Clearly then, a law that imposes a burden on access to the ballot for a prospective candidate is not automatically invalid. See Burdick, 504 U.S. at 433, 112 S.Ct. at 2063. We determine the validity of a challenged restriction by measuring the impact and balancing it against the State's interest as instructed in Anderson and Clements. See also Burdick, 504 U.S. at 438, 112 S.Ct. at 2065-66 (applying the Anderson standard to state law prohibiting write-in voting); Colorado Libertarian Party, 817 P.2d at 1002; National Prohibition Party v. State, 752 P.2d 80, 83 n. 4 (Colo.1988).

The Anderson standard requires that we "first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate." Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. We must...