Zaner v. City of Brighton, 95SC123

Decision Date28 May 1996
Docket NumberNo. 95SC123,95SC123
PartiesSuzan ZANER and Ray Owens, Petitioners, v. CITY OF BRIGHTON and United Power, Inc., Respondents.
CourtColorado Supreme Court

The Pratt Law Firm, Kevin B. Pratt, Castle Rock, for Petitioners.

Daniel, McCain, Brown, Wallace & Brubaker, P.C., Margaret R. Brubaker, Brighton, for Respondent City of Brighton.

Karowsky, Witwer, Miller & Oldenburg, Walker Miller, Greeley, for Respondent United Power, Inc.

Geoffrey T. Wilson, Denver, for Amicus Curiae Colorado Municipal League.

Justice KIRSHBAUM delivered the Opinion of the Court.

In Zaner v. City of Brighton, 899 P.2d 263 (Colo.App.1995), the court of appeals affirmed a judgment entered by the trial court in favor of defendant-respondent City of Brighton (the city) and intervenor-respondent United Power, Inc. (United Power) and against plaintiffs-petitioners Suzan Zaner and Ray Owens (plaintiffs) determining that a special election held by the city to obtain voter approval for the transfer of the city's utility franchise did not violate article X, section 20, of the Colorado Constitution entitled "The Taxpayer's Bill of Rights." 1 Having granted certiorari to review the propriety of the court of appeals' decision, we affirm.


On May 4, 1993, the city council of Brighton (the council) adopted an ordinance conditionally approving the transfer of the city's electric utility franchise from the Public Service Company of Colorado to United Power. On June 3, 1993, registered electors opposed to the transfer filed a referendum petition with the city clerk and requested the council to suspend, reconsider, and repeal the ordinance. On June 15, 1993, the council reconsidered and unanimously affirmed its prior approval of the proposed transfer. The council also adopted a resolution to submit the measure to a vote of registered electors at a special election on August 3, 1993, pursuant to section 1-40-127(2), 1B C.R.S. (1994 Supp.).

On July 22, 1993, the plaintiffs initiated this action against the city in the District Court of Adams County challenging the city's authority to hold the special election. The plaintiffs alleged that the special election was prohibited by article X, section 20(3)(a), which requires, inter alia, that all "ballot issues" shall be decided in a "state general election, biennial local district election, or on the first Tuesday in November of odd-numbered years." The special election was held on August 3, 1993, as scheduled, and the electorate approved the proposed transfer.

The plaintiffs and the city filed cross-motions for summary judgment and stipulated that no material issues of fact were in dispute. 2 The trial court ultimately granted the city's motion, concluding that in view of all relevant provisions of article X, section 20, as well as provisions of sections 1-41-101 to 103, 1B C.R.S. (1995 Supp.), the election date specifications of article X, section 20(3)(a), apply only to ballot issues relating to fiscal matters and that the transfer of the city's utility franchise did not constitute such a fiscal matter.

In affirming the trial court's judgment, the court of appeals initially determined that article X, section 20(3)(a), was ambiguous when considered together with other constitutional provisions relating to the processes of initiative and referendum. The court then concluded that the election date provisions of section 20(3)(a) apply only to fiscal ballot issues which are "local government matters arising under [section 20 of article X]" as set forth in section 1-41-103(4), 1B C.R.S. (1994 Supp.). Zaner, 899 P.2d at 267. Determining that the transfer of a utility franchise did not constitute such a local government matter, the court held that the special election held by the city did not violate article X, section 20(3)(a). Id. at 271.


The plaintiffs argue that article X, section 20(3)(a), requires all elections to be held on the dates specified therein. They contend that the provisions of article X, section 20(3)(a), do not materially conflict with other constitutional provisions and represent an unambiguous determination by the people to limit the dates on which elections may be held. We reject these arguments.


When construing a constitutional amendment courts must ascertain and give effect to the intent of the electorate adopting the amendment. Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 532 (Colo.1995); Urbish v. Lamm, 761 P.2d 756, 760 (Colo.1988). To determine intent, courts first examine the language of the amendment and give words their plain and commonly understood meaning. Bolt, 898 P.2d at 532; City of Aurora v. Acosta, 892 P.2d 264, 267 (Colo.1995); Urbish, 761 P.2d at 760. Courts should not engage in a narrow or technical reading of language contained in an initiated constitutional amendment if to do such would defeat the intent of the people. People in the Interest of Y.D.M., 197 Colo. 403, 407, 593 P.2d 1356, 1359 (1979).

Language contained in a constitutional amendment is ambiguous if reasonably susceptible to more than one interpretation. See In re Interrogatories Relating to the Great Outdoors Colorado Trust Fund, 913 P.2d 533, 538 (Colo.1996); cf. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384, 1389 (Colo.1994). If the intent of the electorate is not clear from the language of an amendment, courts should construe the amendment in light of the objective sought to be achieved and the mischief to be avoided by the amendment. People in Interest of Y.D.M., 197 Colo. at 407, 593 P.2d at 1359; see Acosta, 892 P.2d at 267. Courts should consider the amendment as a whole and, when possible, adopt an interpretation of the language which harmonizes different constitutional provisions rather than an interpretation which would create a conflict between such provisions. Bolt, 898 P.2d at 532; Bickel v. City of Boulder, 885 P.2d 215, 229 (Colo.1994), cert. denied sub nom. Wright v. Boulder Valley Sch. Dist. RE-2, --- U.S. ----, 115 S.Ct. 1112, 130 L.Ed.2d 1076 (1995); cf. Wilczynski v. People, 891 P.2d 998, 1001 (Colo.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1274, 134 L.Ed.2d 220 (1996).


Prior to the effective date of article X, section 20, all elections on statewide measures initiated by or referred to the people were required to be scheduled in even-numbered years at the state biennial regular general election. Colo. Const. art. V, § 1(4); § 1-1-104(12), 1B C.R.S. (1980). Elections on local measures could be scheduled at regular or special elections held not less than sixty days nor more than one hundred fifty days after the date the petition calling for such election was filed. Colo. Const. art. V, § 1(9); § 1-40-115(2), 1B C.R.S. (1991 Supp.). 3

Article X, section 20, contains the following provisions with respect to the scheduling of elections:

(3) Election provisions. (a) Ballot issues shall be decided in a state general election, biennial local district election, or on the first Tuesday in November of odd-numbered years. Except for petitions, bonded debt, or charter or constitutional provisions, districts may consolidate ballot issues and voters may approve a delay of up to four years in voting on ballot issues....

(b) 15-25 days before a ballot issue election, districts shall mail at the least cost, and as a package where districts with ballot issues overlap, a titled notice or set of notices addressed to "All Registered Voters" at each address of one or more active registered electors. Titles shall have this order of preference: "NOTICE OF ELECTION TO INCREASE TAXES/TO INCREASE DEBT/ON A CITIZEN PETITION/ON A REFERRED MEASURE." ...

(c).... Ballot titles for tax or bonded debt increases shall begin, "SHALL (DISTRICT) TAXES BE INCREASED (first or if phased in, final, full fiscal year dollar increase) ANNUALLY ... ?" or "SHALL (DISTRICT) DEBT BE INCREASED (principal amount), WITH A REPAYMENT COST OF (maximum total district cost), ... ?"

Colo. Const. art. X, § 20(3)(a)-(c) (emphasis in original). These provisions indicate that in general voters may consider ballot issues only on one of three possible dates: when a state general election is held, when a biennial local district election is held, or on the first Tuesday in November of odd-numbered years. The term "ballot issue" is defined as "a non-recall petition or referred measure in an election." Colo. Const. art. X, § 20(2)(a).

The plaintiffs argue that because the term "ballot issue" as defined in article X, section 20(2)(a), is not limited in any manner, all initiated or referred measures, regardless of subject matter, may be decided only on one of the three dates specified by article X, section 20(3)(a). Such construction of article X, section 20(3)(a), would require the conclusion that while registered electors could vote on statewide measures every year rather than only every two years, registered electors of cities, towns, and municipalities could no longer hold special elections with respect to locally initiated or referred measures. Admittedly, article X, sections 20(2)(a) and (3)(a), can be so construed if read in isolation. However, courts must be careful not to determine intent by considering language in isolation when other relevant provisions cast doubt upon that interpretation. Cf. In re Estate of Kettering, 151 Colo. 202, 207, 376 P.2d 983, 986 (1962).

We have previously recognized that article X, section 20, constitutes an example of the people exercising their initiative power to enact laws in the specific context of state and local government finance, spending, and taxation. Bickel, 885 P.2d at 226. Article X, section 20, provides the people with greater direct control over government growth by, among other things, setting various spending and revenue limits and requiring voter approval of measures that would increase debt, spending, or taxes. Bolt, 898 P.2d at 535; Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859, 867 (Colo.1995); Acosta, ...

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