Montero v. Meyer
| Decision Date | 27 April 1992 |
| Docket Number | No. 88-C-889.,88-C-889. |
| Citation | 790 F. Supp. 1531 |
| Parties | Rita MONTERO, et al., Plaintiffs, v. Natalie MEYER, et al., Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
Barry Roseman, Henry Feldman, Denver, Colo., for plaintiffs.
Catharyn Baird, Denver, Colo., for defendants.
This suit arises out of an initiated amendment to the Colorado Constitution designating English as Colorado's official language. Plaintiffs Rita Montero, Delfina Maria Garcia, Franciso Coca and Apolinar Rael, all Spanish-speaking Colorado citizens, seek declaratory and injunctive relief under the Voting Rights Act, 42 U.S.C. §§ 1971 et seq. (first claim) and 42 U.S.C. § 1983 for an alleged denial of their Fourteenth Amendment due process rights (second claim).
On September 16, 1988, this court granted the plaintiffs' motion for a preliminary injunction based solely on their first claim.1 See Montero v. Meyer, 696 F.Supp. 540 (D.Colo.1988). The Tenth Circuit reversed that decision. See Montero v. Meyer, 861 F.2d 603 (10th Cir.1988), cert. denied, 492 U.S. 921, 109 S.Ct. 3249, 106 L.Ed.2d 595 (1989). Because the Tenth Circuit's decision disposed of all claims against the non-government defendants,2 I dismissed the action as against them on November 20, 1990.
Currently pending are the parties' cross-motions for summary judgment on the plaintiffs' second claim as against the government defendants, Colorado Secretary of State Natalie Meyer and the State of Colorado. The parties have briefed the issues and oral argument has been heard. Jurisdiction exists under 28 U.S.C. §§ 1331 and 1343.
At the threshold it is necessary to review Colorado law governing ballot initiatives in the context of the facts underlying this action.
Colorado citizens are guaranteed the right to propose and enact amendments to the Colorado Constitution. Colo. Const. art V, § 1(1). Proponents of a proposed constitutional amendment first must submit a draft of the amendment's text to the General Assembly's legislative research and drafting offices for review and comment. Id. at § 1(5); Colo.Rev.Stat. § 1-40-101(1). Within two weeks after that submission, those agencies must:
"render their comments to the proponents of the proposed measure at a meeting open to the public, which shall be held only after full and timely notice to the public." Colo. Const. art V, § 1(5) (emphasis added).
The proposed amendment then is submitted to Colorado's Secretary of State who must schedule a public hearing before herself, the Colorado Attorney General and the Director of the Colorado Legislative Drafting Office. Colo.Rev.Stat. § 1-40-101(2). At that hearing those three officials act as the "title board." Consistent with the requirements of Colo.Rev.Stat. § 1-40-101(2), the title board finalizes the language of the proposed amendment's title, submission clause and summary of content. Id.
Within forty-eight hours after the title board's decision, proponents of the amendment who claim that the language of the ballot title, submission clause or summary as drafted by the title board is unfair, or does not clearly express the proposal's true meaning and intent, may move for a title board rehearing. Colo.Rev.Stat. § 1-40-101(3). Upon an adverse rehearing decision, the proponents may seek expedited review from the Colorado Supreme Court. Id.
Any other registered elector3 who is dissatisfied with the title board's decision on the grounds stated in § 1-40-101(3) may move for a rehearing within thirty days after the title board's hearing.4 Colo.Rev. Stat. § 1-40-102(3). Expedited review by the Colorado Supreme Court is available on the same terms that govern a proponent's appeal. Id.
After collecting signatures that comply with Colo.Rev.Stat. § 1-40-107, an initiated constitutional amendment's proponents submit completed petition forms to the Secretary of State who determines whether they contain the statutorily mandated number of valid signatures. Colo.Rev.Stat. § 1-40-109. Any registered elector may file a written protest of the Secretary of State's certification that the signature requirement has been met. Id.
If a protest is filed the Secretary of State must hold a hearing, but may only consider whether the proponents have in fact met the minimum signature requirement. Judicial review of the Secretary of State's decision is limited to determining whether the Secretary of State acted arbitrarily, capriciously or in excess of constitutional or statutory authority. Id.
In April 1987, proponents of the English Only initiative submitted an initial draft of their proposed amendment for review and comment. On April 27, 1987, the proponents met with legislative research and drafting office staff members to discuss the latter's comments.5 No public notice of that meeting, as required under Colo. Const. art V, § 1(5), was provided. The proponents thereafter modified their proposal, submitting it formally to Colorado Secretary of State Meyer on April 29, 1987.
On April 30, 1987, Colorado Secretary of State Meyer issued notice that a title board hearing would be held on May 6, 1987, to set the English Only amendment's title, summary and submission clause. That notice was printed in the English language only and was mailed directly to the initiative's proponents.
Meyer sought to notify the general public of the impending title board meeting only by posting a copy of the notice outside the office that the Secretary of State formerly had occupied in the Colorado State Capitol, by placing an undetermined number of copies on the elections counter in the Secretary of States's then current office, by placing copies of the notice on a hallway table located outside the Capitol press office, by handing notices to reporters present in that office, and by leaving copies under the doors of other reporters' offices in the Capitol building.6
On May 6, 1987, the title board held its hearing. Meyer there orally notified those present of the time limits for seeking a rehearing and judicial review. That information was provided to the amendment's lead proponent by a letter dated May 7, 1987. No other notice was provided.
"English Only" petitions were thereafter circulated. On November 13, 1987, Meyer verified that the minimum number of valid signatures had been collected, and issued notice that a protest could be filed on or before November 27, 1987. Montero filed a protest on that date. Among other things, she argued: (1) that her due process rights had been violated by the state's failure to provide notice of her rights to rehearing and Colorado Supreme Court review; and (2) that the title board had not fulfilled its duties under Colo.Rev. Stat. § 1-40-101 because the initiative's language and the fiscal impact statement were too vague.
On December 15, 1987, Meyer held a hearing on Montero's protest. However she refused to consider Montero's arguments, concluding that they should have been raised at the May 6, 1987, title board hearing, on rehearing or on appeal to the Colorado Supreme Court. Because Meyer deemed herself without jurisdiction to consider any issue other than the validity of the petition's signatures, she dismissed Montero's protest.
Montero then commenced an action in Denver district court. That court affirmed Meyer's decision that she had no jurisdiction to entertain Montero's arguments, holding that they could be appropriately presented only within the statutory appeals process. On June 10, 1988, the plaintiffs commenced this action.
Preliminarily I note that the plaintiffs have moved to amend their complaint. Justice requires granting the plaintiffs' motion to amend. Fed.R.Civ.P. 15(a).
Plaintiffs' § 1983 claim is based on an alleged deprivation of procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution.7 Plaintiffs argue that their state-created "liberty" right to obtain rehearing and Colorado Supreme Court review was denied when Meyer failed to notify them of the May 6, 1987, title board hearing.
Conceding that the Colorado statute creates a narrowly limited liberty interest for a registered elector to challenge title board decisions, the defendants assert: (1) that because the amendment here at issue has been approved by Colorado voters, this matter is moot; and (2) that if it is not moot, the plaintiffs received all the process that was due.
After reviewing the briefs and evidence submitted, I agree with the parties that no genuine issues of material fact remains in dispute. The matter is thus ripe for decision on summary judgment.
Because the amendment was approved by Colorado voters in 1987, the defendants argue that the case is moot. A case is not moot if its underlying dispute falls within the class of controversies "capable of repetition, yet evading review." First National Bank v. Bellotti, 435 U.S. 765, 775, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707 (1978); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249 n. 5, 36 L.Ed.2d 1 (1973); Grant v. Meyer, 828 F.2d 1446, 1449 (10th Cir.1987), aff'd, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). A finding of mootness is precluded if: (1) the challenged action's duration is too short for the litigation to be completed before the action expires; and (2) there is a reasonable expectation that the complaining party will be subjected to the same action in the future. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Grant, 828 F.2d at 1449.
Under no reasonably foreseeable circumstances could the plaintiffs have obtained full review of the issues here presented before the vote on this constitutional amendment was held. Colorado law requires proponents of an initiative to obtain the required number of petition signatures within six months after the title board...
To continue reading
Request your trial
-
Montero v. Meyer, s. 92-1196
...("Meyer") and the State of Colorado, appeal the district court's partial grant of Plaintiffs-Appellees' motion for summary judgment. 790 F.Supp. 1531. Plaintiffs, Rita Montero, Delfina Maria Garcia, Francisco Coca and Apolinar Rael, all spanish-speaking Colorado citizens, appeal the distric......