May v. Town of Mountain Village

• Decision Date: 27 November 1998
• Docket Number: No. 98CA0088,98CA0088
• Citation: 969 P.2d 790
• Parties: Joan MAY, William Felicelli, John Rielly, Peter Chadman & Virginia Oglesby, Plaintiffs-Appellants, v. TOWN OF MOUNTAIN VILLAGE, a Colorado municipal corporation, Defendant-Appellee. . A. Rehearing Denied
• Court: Colorado Court of Appeals

Page 790

969 P.2d 790

Joan MAY, William Felicelli, John Rielly, Peter Chadman &amp Virginia Oglesby, Plaintiffs-Appellants, v. TOWN OF MOUNTAIN VILLAGE, a Colorado municipal corporation Defendant-Appellee.

No. 98CA0088.

Colorado Court of Appeals Div. A.

Rehearing Denied Nov. 27, 1998.

Oct. 29, 1998.

John H. Steel, Telluride, Colorado, for Plaintiffs-Appellants.

Williams, Youle & Koenigs, P.C., Dennis J. Herman, Michael T. Gilbert, Denver, Colorado; J. David Reed, P.C., J. David Reed, Montrose, Colorado, for Defendant-Appellee.

Opinion by Chief Judge HUME.

Plaintiffs, residents of the Town of Mountain Village, a Colorado municipal corporation, appeal the summary judgment entered in favor of the Town on the issue of whether it has the right under its charter to qualify non-residents to vote in municipal elections. We affirm.

The facts of this case were stipulated and appear of record in the Case Management Order dated June 3, 1997. In March 1995, a majority of the residents of the Town voted to approve a Home Rule Charter. Mountain Village Charter § 2.4.b) grants the right to vote on any issue at any town election to non- resident property owners who: 1) register with the Town Clerk at least 30 days prior to any Town election; 2) are owners of record for at least 30 consecutive days immediately prior to the date of an election; 3) own during that time at least 50% of the fee title interest in real property in the Town; 4) are at least 18 years of age at the time of the election; and 5) are natural persons.

As pertinent here, 505 residents and 541 non-residents were eligible to vote in municipal elections. Residents own approximately 4% of the assessed value of real property in the Town; non-residents own approximately 34%; the rest is owned by corporations and other entities not entitled to vote.

By affidavit of the Town Clerk and custodian of records, it was established that the 1995 total assessed value of real property was approximately $89 million. Residents owned approximately $3,896,918 of that total and paid approximately $279,955 in property taxes. Non-residents entitled to vote owned property valued at approximately $30,912,699 and paid approximately $2,221,038 in property taxes.

In 1996, plaintiffs filed a complaint in the United States District Court for the District of Colorado, asserting that the Charter provision granting the right to vote to non-resident property owners violated their right to equal protection under the Fourteenth Amendment and Colo. Const. art. II, § 25. Plaintiffs also contended that the Charter provision violated several other provisions of Colorado law.

The federal district court granted summary judgment in favor of the Town, finding no violation of equal protection and refusing to exercise supplemental jurisdiction over the claims made under the Colorado Constitution and Colorado statutes. May v. Town of Mountain Village, 944 F.Supp. 821 (D.Colo.1996). That ruling was affirmed on appeal to the United States Court of Appeals. May v. Town of Mountain Village, 132 F.3d 576 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 2343, 141 L.Ed.2d 714 (1998).

Thereafter, plaintiffs filed this state action in the district court for declaratory judgment and injunctive relief, reasserting their claims under the Colorado Constitution and provisions of Colorado statutory law. This appeal followed the entry of summary judgment in favor of the Town.

I.

Plaintiffs first contend that, regardless of the decisions of the federal court finding no equal protection violation under the Fourteenth Amendment, the Charter provision violates the guarantee of equal protection under the laws as provided by Colo. Const. art. II, § 25. We disagree.

Although the equal protection clause of the Fourteenth Amendment creates rights which cannot be restricted or infringed by the constitution or laws of Colorado, the Colorado Constitution may afford greater protections than those recognized by the United States Constitution. See Millis v. Board of County Commissioners, 626 P.2d 652 (Colo.1981).

As the federal courts have already decided the equal protection challenge under the United States Constitution, plaintiffs must demonstrate justification for the expansion of the guarantee of equal protection under the Colorado Constitution. See Millis v. Board of County Commissioners, supra.

Plaintiffs argue that, under Evans v. Romer, 854 P.2d 1270 (Colo.1993), because voting is a fundamental constitutional right, strict scrutiny should apply to the analysis of the equal protection claim. In Evans, the supreme court addressed a denial of the right to participate equally in the political process and determined that any attempt to infringe on an independently identifiable group's ability to exercise that right is subject to strict judicial scrutiny.

Here, in contrast, plaintiffs were not denied access to the political process, and the voting franchise is not being denied to any person otherwise qualified to vote under Colorado law. Rather, the franchise is expanded to include non-resident property owners.

Nonetheless, plaintiffs argue that this expansion constitutes a dilution of the efficacy of their votes, which should be treated the same as an outright denial of the franchise. However, we agree with the federal district court, that "there is simply no evidence here that the Town restricts access to the electoral process or treats voters unequally." May v. Town of Mountain Village, supra, 944 F.Supp. at 824. In addition, as noted in that opinion, when a law expands the right to vote causing vote dilution, the majority of courts apply the rational basis test. We agree that the rational basis test is applicable here.

Under the rational basis test, the classification challenged need only be rationally related to a legitimate state interest. A classification scheme may be invalidated only if no set of facts can reasonably be conceived to justify it. See Millis v. Board of County Commissioners, supra.

Here, the reason for the expansion of voting qualifications to include non-resident property owners is explained in the Charter itself. (Mountain Village Charter § 1.4.b), entitled "Provision for Non-resident Voting Rights," recognizes the "unusual nature" of the Town and the fact that a large number of property owners only live there on a part-time basis, or, in some cases, not at all.

In addition, the stipulated facts appearing in the record establish the unique nature of the Town, including the fact that the majority of property is owned by non-residents and a far greater percentage of property tax is collected from them.

In our view, the Town had a rational basis for enfranchising non-resident property owners. Granting non-residents the right to vote ensures their participation in the community, including a right to determine the expenditure of the tax monies paid into the Town. See May v. Town of Mountain Village, supra; see also Spahos v. Mayor & Councilmen of Savannah Beach, 207 F.Supp. 688 (S.D.Ga.1962), aff'd per curiam, 371 U.S. 206, 83 S.Ct. 304, 9 L.Ed.2d 269 (1962)(finding rational basis for granting summer residents of town right to vote in local elections); Snead v. City of Albuquerque, 663 F.Supp. 1084 (D.N.M.1987), aff'd, 841 F.2d 1131, cert. denied, 485 U.S. 1009, 108 S.Ct. 1475, 99 L.Ed.2d 704 (1988)(municipality may allow non-resident property owners to vote in bond election if rational basis exists for finding that they are affected by issue subject to vote).

Therefore, we hold that the Charter provision granting the right to vote to non-resident property owners does not violate plaintiffs' right to equal protection under Colo. Const. art. II, § 25.

II.

Plaintiffs next contend that Colo. Const. art. XX does not expressly delegate the authority to decide voter qualifications to home rule municipalities and that, therefore, the Town was without authority to grant voting rights to non-resident property owners. We do not agree.

Colo. Const. art. XX, § 6, entitled "Home rule for cities and towns," provides in pertinent part as follows:

The people of each city or town of this state ... are hereby vested with, and they shall always 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 or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, canvassing, certifying the result, 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....

Despite the language of this article, plaintiffs argue that Mauff v. People ex rel. Clay, 52 Colo. 562, 123 P. 101 (1912) compels the conclusion that home rule municipalities may not determine voter qualifications. However, Colo. Const. art. XX, § 6, was amended after the Mauff decision in response to the court's holding in that case, and as amended it supersedes that decision. We disagree with plaintiffs that Mauff can be construed to be the law in the area of home rule municipal voter qualifications.

As stated in People ex rel. Tate v. Prevost, 55 Colo. 199, 215, 134 P. 129, 134 (1913):

Whatever may have been the law or the status of municipal elections before the amendment [of art. XX], their status now, by the adoption of that amendment, is fixed by legislative declaration of the people as local and municipal matters. The Home Rule Amendment says that the charter shall extend to all local and municipal matters, and that the people may legislate concerning...