McKee v. City of Louisville

• Decision Date: 08 September 1980
• Docket Number: No. 79SA435,79SA435
• Citation: 200 Colo. 525,616 P.2d 969
• Parties: Don McKEE, Sally Collins, John Leary, Jeannine Malmsbury and James A. Cederberg, individually and as the representatives of Qualified Electors of the City of Louisville, Colorado, Plaintiffs-Appellants, v. The CITY OF LOUISVILLE, a Colorado Municipal Corporation, Howard Berry, Lawrence Caranci, Anthony Del Pizzo, Eugene Di Carlo, Robert Kelker and Norbert Meier, as Members of the City Council of the City of Louisville, Colorado, and John Waschak, as Mayor, Defendants-Appellees, and Hanover Development Company, Zenith Builders, Inc., a Colorado Corporation, WJS Corporation, a Colorado Corporation, and William & Associates, a Colorado Corporation, Intervenors-Appellees.
• Court: Colorado Supreme Court

Page 969

616 P.2d 969

200 Colo. 525

Don McKEE, Sally Collins, John Leary, Jeannine Malmsbury and

James A. Cederberg, individually and as the representatives

of Qualified Electors of the City of Louisville, Colorado, Plaintiffs-Appellants, v. The CITY OF LOUISVILLE, a Colorado Municipal Corporation, Howard Berry, Lawrence Caranci, Anthony Del Pizzo, Eugene Di

Carlo, Robert Kelker and Norbert Meier, as Members of the

City Council of the City of Louisville, Colorado, and John

Waschak, as Mayor, Defendants-Appellees,

and

Hanover Development Company, Zenith Builders, Inc., a

Colorado Corporation, WJS Corporation, a Colorado

Corporation, and William & Associates, a

Colorado Corporation,

Intervenors-Appellees.

No. 79SA435.

Supreme Court of Colorado, En Banc.

Sept. 8, 1980.

Caplan & Earnest, Gerald A. Caplan, Richard E. Bump, Boulder, attorneys for plaintiffs-appellants.

Rautenstraus & Joss, Curt D. Rautenstraus, W. Bruce Joss, Louisville, Musick, Williamson, Schwartz, Leavenworth & Cope, P. C., Stephen T. Williamson, Boulder, attorneys for defendants-appellees, and Special Counsel to the City of Louisville.

French & Stone, Joseph C. French, Robert W. Stone, Boulder, attorneys for intervenor-appellee, Hanover Development Co.

QUINN, Justice.

This appeal questions the extent to which the legislative body of a municipality, by adopting an annexation ordinance as an emergency measure, can thereby curtail the initiative and referendum powers reserved to the people by Article V, Section 1, of the Colorado Constitution.

The plaintiff-appellants, Don McKee and four other qualified electors (electors), commenced this action individually and as representatives of all qualified electors of the City of Louisville against the members of the city council, the Louisville mayor, and the City of Louisville. The complaint alleged that the electors' constitutional rights to referendum and initiative were abridged by the failure of the named Louisville city officials to refer an annexation ordinance, ordinance 637, to the voters of Louisville, and by their failure to submit to the vote of the electorate an initiated measure repealing ordinance 637. After a trial on the merits, the district court ruled that the electors had no right to either a referendum or initiative election and dismissed the complaint with prejudice. We reverse the judgment of dismissal and remand the cause with directions.

I.

On December 13, 1978, Hanover Development Company, Zenith Builders, Inc., WJS Corporation and William and Associates (property owners) filed a petition with the City of Louisville for annexation of certain land they had assembled. The land consisted of 1,407 acres which they intended to develop as both residential property and a regional commercial center known as Centennial Valley Mall. A public hearing on the proposed annexation was held on February 13, 1979. One week later, on February 20, 1979, the Louisville City Council introduced and unanimously approved on first reading ordinance 637, which purported to annex the property in question. The ordinance contained an emergency or safety clause rendering it effective upon its adoption as necessary for the public health, safety and welfare. No mention of the emergency clause was made at the February 20 meeting and the ordinance was read by title only. At this meeting the electors orally requested the city council to refer the ordinance to a vote of the qualified electors of the city. This request was summarily denied and a public hearing on the ordinance was scheduled for 30 days later, March 20, 1979. The electors then filed duly signed petitions for a referendum with the city clerk. The city council refused to refer the ordinance to a vote of the electorate.

At the public hearing on March 20, 1979, the electors asked the city counsel what they were required to do in order to place the ordinance before the electorate. They receive no response. At the March 20 meeting the city council unanimously adopted ordinance 637. ¹

Upon adoption of the ordinance the electors immediately refiled the referendum petition with the city clerk. On the following day, March 21, 1979, the electors at 8:15 a. m. also filed with the city clerk initiative petitions duly executed by a sufficient number of qualified electors. The initiative petitions proposed a measure to repeal ordinance 637. The city officials of Louisville refused to submit the initiated measure to the electorate.

The electors, on March 21, 1979, filed an action in the district court requesting the court to suspend the effect of ordinance 637 and to order a referendum election, or alternatively, to order the Louisville city officials to publish the initiated measure and to submit it to a popular election. On motion of the property owners, the district court permitted them to intervene because of their interest in the matter. ² After a trial on the merits the court held that the electors had no right to a referendum on the annexation ordinance because the inclusion of the emergency clause exempted it from the referendum provision of the Colorado Constitution. Colo. Const. Art. V, Sec. 1. The court also held that the electors had no constitutional right to an election on the initiated measure because, under the Municipal Annexation Act of 1965 (Municipal Annexation Act), sections 31-12-101 et seq.; 31-12-501; 31-12-601, C.R.S. 1973 (1977 Repl.Vol. 12), neither the city council nor the electorate have the power to disconnect annexed land without the consent of the property owners.

On this appeal the electors claim that Article V, Section 1 of the Colorado Constitution entitles them to a referendum election on ordinance 637 despite the inclusion of an emergency clause in the ordinance, ³ or at least to an initiative election on the proposed repeal measure. We find it unnecessary to address the electors' claim regarding a referendum election, as the electors were clearly deprived of their constitutional right to initiative.

II.

"All political power is vested in and derived from the people," and all government originates from the people. Colo. Const. Art. II, Sec. 1; Colorado Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972); Hudson v. Annear, 101 Colo. 551, 75 P.2d 587 (1938). By the express provisions of the Colorado Constitution the people have reserved for themselves the right to legislate. Colo. Const. Art. V, Sec. 1. This right is of the first order; it is not a grant to the people but a reservation by them for themselves. E.g., In re Legislative Reapportionment, 150 Colo. 380, 374 P.2d 66 (1962). The right of initiative pertains to any measure, whether constitutional or legislative, and, in the case of municipalities, it encompasses legislation of every character:

"The initiative . . . powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special and municipal legislation of every character in or for their respective municipalities." Colo. Const. Art. V, Sec. 1. ⁴

Like the right to vote, the power of initiative is a fundamental right at the very core of our republican form of government. E.g., Bernzen v. City of Boulder, 186 Colo. 81, 525 P.2d 416 (1974); Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938).

This court has always liberally construed this fundamental right, and, concomitantly, we have viewed with the closest scrutiny any governmental action that has the effect of curtailing its free exercise. E.g., Billings v. Buchanan, 192 Colo. 32, 555 P.2d 176 (1976). Colorado Project-Common Cause v. Anderson, supra; Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692 (1960); Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952); Baker v. Bosworth, 122 Colo. 356, 222 P.2d 416 (1950). Especially in cases where, as here, the power of referendum is ostensibly unavailable to the people through the constitutional exemption of an emergency clause, nothing short of jealous judicial protection of the one remaining power of the electorate is in order. We expressly recognized this responsibility in Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108 (1916):

"Under the reserved power of the initiative and referendum, after the declaration by the General Assembly that a law is necessary for the immediate preservation of the public peace, health or safety, when not referred to the people for their judgment, it still remains with them if they are dissatisfied with it, to cause a measure to be submitted at the next general election for its repeal." 62 Colo. at 13, 156 P. at 1111.

Governmental officials have no power to prohibit the exercise of the initiative by prematurely passing upon the substantive merits of the initiated measure. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956). Nor may the courts interfere with the exercise of this right by declaring unconstitutional or invalid a proposed measure before the process has run its course and the measure is actually adopted. City of Rocky Ford v. Brown, supra; Speer v. People, 52 Colo. 325, 122 P. 768 (1912). Then and only then, when actual litigants whose rights are affected are before it, may the court determine the validity of the legislation. City of Rocky Ford v. Brown, supra; Speer v. People, supra.

The trial court's dismissal of the electors' complaint in this case is flawed in two respects. First, the court determined that the interest of the intervening property owners in the annexed property permitted it to rule upon the validity of the initiated measure before its adoption. And second, the court based its dismissal upon a premature judicial determination that the initiated measure, if approved, would be invalid as beyond the legislative power of the city council and, accordingly, beyond the initiative power of the electorate.

III.

In rejecting the electors' claim for a judicially ordered initiative election, the trial court ruled that the interests of...