In the Matter of Statement of Sufficiency For 1997-98 # 40 (Medical Use of Marijuana): Victoria BUCKLEY, in her official capacity as the Secretary of State of the State of Colorado, Petitioner, v. Martin H. CHILCUTT, Respondent.
No. 98SA378
Supreme Court of Colorado, En Banc.
Nov. 23, 1998.
112-121
We have previously held that disbarment is warranted in cases involving convictions for comparably serious crimes. See, e.g., People v. Hilgendorf, 895 P.2d 544, 545 (Colo. 1995) (knowingly making false statements or willfully overvaluing property with the purpose of influencing the action of a federal bank); People v. Bollinger, 859 P.2d 901, 902 (Colo. 1993) (conviction for mail fraud); People v. Terborg, 848 P.2d 346, 347 (Colo. 1993) (conviction for bank fraud); People v. Brown, 841 P.2d 1066, 1067 (Colo. 1992) (conviction for bankruptcy fraud); People v. Schwartz, 814 P.2d 793, 794 (Colo. 1991) (conviction for bankruptcy fraud).
Kiely has no previous discipline in this state, but that alone does not call for a sanction less than disbarment. See Hilgendorf, 895 P.2d at 545. Accordingly, we accept the conditional admission and the recommendation of the inquiry panel that Kiely be disbarred.
III.
It is hereby ordered that Dan R. Kiely be disbarred, effective thirty days after the issuance of this opinion. It is further ordered that Kiely be required to demonstrate prior to readmission that he has paid the costs of this proceeding in the amount of $48.42 to the Supreme Court Grievance Committee, or its successor entity, 600 Seventeenth Street, Suite 300 South, Denver, Colorado 80202-5435.
Isaacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Edward T. Ramey, Denver, for Respondent.
Chief Justice MULLARKEY delivered the Opinion of the Court.
Pursuant to
Because the election date was fast approaching, the ballots already had been printed, and such ballots included this initiative, we issued an order summarily reversing the judgment of the district court. We directed that the Secretary conduct a line-by-line review of the signatures and that the votes cast for the initiative be counted only if the signatures were found sufficient. Our order stated that this opinion would follow.
I. Background
The facts underlying this case are not in dispute. Respondent Martin H. Chilcutt, a registered elector, is a proponent of a citizen-initiative petition that would amend the Colorado Constitution to authorize specified medical uses of marijuana for persons suffering from certain medical conditions. On July 7, 1998, he and other proponents timely submitted their initiative petition, designated 1997-98 # 40, to the Secretary for verification and determination of sufficiency of the petition signatures in order to certify the initiative for the 1998 general election. The constitutional formula required 54,242 signatures for an initiative to qualify for the 1998 general election ballot. The Secretary conducted a random sampling of 4,482 of the 88,815 signatures submitted. Her projection, based on the random sample, indicated that the petition contained 47,960 valid signatures or 88% of the requisite number to certify the Medical Use of Marijuana measure for the general election. Because the random sample indicated that the petition contained less than 90% of the required number of signatures, on August 6, 1998, the Secretary issued a statement determining that the petition was insufficient pursuant to
On September 4, 1998, Chilcutt filed a timely protest in Denver District Court as permitted by
The Secretary argued that, pursuant to
At the protest hearing, the district court concluded that there was “no express authority for the secretary of state to do a line-by-line analysis outside the statutory parameters.” Chilcutt v. Buckley, No. 98CV6940, slip op. at 15 (D.Ct. Sept. 11, 1998). In addition, the district court rejected the Secretary‘s proposal to print the initiative on the ballot while conducting a line-by-line count for certification. The district court reasoned that such a process would be “cumbersome, awkward, and messy” in addition to generating significant uncertainty. Id. at 16. Applying these concerns to the factors we set out in Rathke v. MacFarlane, 648 P.2d 648, 652-53 (Colo. 1982), the district court concluded that injunctive relief was appropriate and ordered the Secretary to certify the initiative for the ballot because of the state‘s policy “to favor enfranchising the voters of this state rather than creating potential disenfranchisement.” Chilcutt, No. 98CV6940, slip op. at 16.
II. Analysis
A. The Initiative Process
We begin our analysis with relevant background regarding the initiative process. The process is governed by
If the random sample indicates that the petition as a whole contains less than 90% of the required number of valid signatures, then the statute deems the petition to be “not sufficient.” See id. If the random sample indicates that the number of valid signatures equals or exceeds 110% of the number required for certification, then the statute deems the petition “sufficient.” See id. If the random sample indicates that the number of valid signatures is greater than 90% but less than 110% of the requisite number, then the Secretary is required to “order the examination and verification of each signature filed.” Id. If this “line-by-line” count indicates that the petition contains the constitutionally required number of signatures, 54,242 for the 1998 election, the initiative must be submitted to the people “for adoption or rejection at the polls.” See
A statutory remedy is provided for the Secretary‘s failure to act within thirty days: “If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient.”
Nothing in the statute expressly addresses the situation now before us. The Secretary admittedly made mistakes and excluded some valid signatures when she randomly sampled the signatures. However, when the errors were corrected, the sample still contained insufficient signatures to automatically qualify the initiative for the ballot under
For guidance in construing the statutes, we turn to the constitution and basic principles of statutory construction.
B. Constitutional Requirements
Our first consideration regarding the consequences of the Secretary‘s sampling error and her subsequent determination that more than 90% but less than 110% of the signatures were valid is a constitutional one. On the one hand, our analysis must be guided by the principle that legislation concerning a constitutional right like the power of initiative must not impair that right:
Although constitutional provisions which are self-executing require no implementing legislation, legislation that furthers the purpose of self-executing constitutional provisions or facilitates their enforcement is permissible. However, legislation which directly or indirectly impairs, limits or destroys rights granted by self-executing constitutional provisions is not permissible.
Zaner v. City of Brighton, 917 P.2d 280, 286 (Colo. 1996) (quoting Brownlow v. Wunsch, 103 Colo. 120, 123, 83 P.2d 775, 777 (1938)). On the other hand, our analysis is bounded by the principle that we must presume a statute to be constitutional, see Harris v. Heckers, 185 Colo. 39, 41, 521 P.2d 766, 768 (1974); accord In re Marriage of Franks, 189 Colo. 499, 506, 542 P.2d 845, 850 (1975), and that if two interpretations are possible, we must avoid an interpretation that might render a statute unconstitutional. See Meyer v. Putnam, 186 Colo. 132, 134, 526 P.2d 139, 140 (1974).
The purpose for a detailed signature verification procedure is “to maintain integrity in the initiative process and to comply with the constitutional requirements.” Fabec v. Beck, 922 P.2d 330, 335 (Colo. 1996) (citing
A petition meeting constitutional requirements that has been properly verified “shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors.”
Chilcutt asserts that the Secretary does not have any implied authority to act in this area unless that authority would “facilitat[e] rather than frustrat[e] the exercise of the right of initiative.” He suggests that our previous decisions in Fabec and Montero v. Meyer, 795 P.2d 242, 246-47 (Colo. 1990), support this conclusion because both emphasized liberal construction regarding compliance with the initiative process.
While Fabec and Montero emphasize liberal construction, they do so primarily with respect to technical statutory considerations: “The constitutional right reserved to the peo-
At issue here is not a technical procedural provision but a substantive constitutional requirement. A ballot initiative for the 1998 election must be supported by 54,242 valid signatures, pursuant to
In addition, Fabec and Montero both recognize the need “to fairly guard against ... mistake in the exercise by the people of this constitutional right.” Fabec, 922 P.2d at 341 (quoting Montero, 795 P.2d at 245). Chilcutt views the right of initiative solely from the perspective of an initiative‘s proponent who desires to place a measure on the ballot. He ignores the interests of the voters who, through the constitution, have required that an initiative must demonstrate a certain level of support before it may appear on the ballot. To allow certification without a showing that the valid signature requirement has been met would be to require Colorado‘s voters to decide on an initiative that has not met a basic constitutional requirement for placement on the ballot. We conclude that this result would fail to protect the integrity of the right of initiative contemplated by our constitution.
C. Statutory Requirements
Turning now to the statute, we apply traditional principles of statutory construction. We initially rely on the language of the statute, giving words and phrases their plain and ordinary meaning. See Moody v. Corsentino, 843 P.2d 1355, 1370 (Colo. 1993); People v. Guenther, 740 P.2d 971, 975 (Colo. 1987). If explicit statutory provisions are ambiguous or silent regarding the matter at issue, we interpret the statute to comport with the legislature‘s objectives. See Brock v. Nyland, 955 P.2d 1037, 1040 (Colo. 1998). “A court‘s primary task in statutory construction is to ascertain and give effect to the legislative purpose underlying a statutory enactment.” Colorado Common Cause v. Meyer, 758 P.2d 153, 160 (Colo. 1988). To do so, we construe the statute as a whole “to give consistent, harmonious, and sensible effect to all of its parts.” AviComm, Inc. v. Colorado Pub. Utils. Comm‘n, 955 P.2d 1023, 1031 (Colo. 1998). As part of our inquiry we also will consider the legislative history where instructive, see
The statutory question raised by this case is what consequence follows when the Secretary issues a finding of insufficiency within the thirty days prescribed by
The Secretary argues that she is authorized by
According to Chilcutt, the opportunity to conduct a line-by-line review exists only within the thirty day period for issuing a statement regarding the petition‘s sufficiency. Under Chilcutt‘s analysis, once the thirty-day period for the Secretary‘s petition review has passed, “if she does not complete it—for whatever reason—the petition shall be deemed sufficient,” citing
A protest in writing ... may be filed in the district court for the county in which the petition has been filed by some registered elector, within thirty days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement shall be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient.
This section requires the Secretary to issue a statement regarding sufficiency “no later than thirty calendar days after the petition has been filed.” Here the Secretary issued a statement within thirty calendar days. While the random sample proved to be flawed, the finding that the signatures were constitutionally insufficient did not change. There is no requirement that the Secretary both complete the random sample and conduct a line-by-line review within thirty days. To create such a requirement would place a heavy burden on the Secretary and effectively eliminate the use of random sampling. Given the statutory time frame, any time the Secretary‘s random sample was shown to be flawed, the initiative would be certified to the ballot. This would create an absurd result which the legislators could not have intended.
An example illustrates the unintended bad consequences of Chilcutt‘s approach. If, based on a random sample pursuant to
For these reasons we reject Chilcutt‘s analysis and conclude that the Secretary satisfied the thirty day requirement when, within thirty days, she conducted the random sample and issued a statement determining the petition to be insufficient.
Chilcutt also argues that placing the initiative on the ballot in these circumstances is consistent with the “statutory tilt” allowing liberal exercise of the initiative right. Protection of the right of initiative is certainly paramount.
The legislative history of the right of initiative is instructive. Cf.
As originally enacted, the constitutional right of initiative and referendum required signatures by “qualified electors.” See Initiative and Referendum Act, ch. 3, 1910 Colo. Sess. Laws 11 (extraordinary session). That term referred to persons who were eligible to vote; signatories were not required to be registered voters. In 1913, the newly created statutory initiative process included a provision that allowed a petition to be filed with the secretary of state subject to protest by a qualified elector. See Initiative and Referendum Act, ch. 97, sec. 3, 1913 Colo. Sess. Laws 310, 311. Unless a protest was filed, a petition was deemed sufficient. See id. In 1941, the legislature expanded statutory protest opportunities by allowing amended protests if the Secretary denied an initial protest. See Initiative and Referendum Act, ch. 147, sec. 5, 1941 Colo. Sess. Laws 480, 485.
In 1980, voters amended
The legislature revised the entire process in 1989 and required the Secretary to “examine each name signature on the petition” for any petition submission. See Initiative and Referendum Act, ch. 42, sec. 7,
The last significant revision of the initiative and referendum law occurred in 1993, and the legislative history for this most recent revision is instructive as to the General Assembly‘s intent. See, e.g., City of Aspen v. Meserole, 803 P.2d 950, 953-55 (Colo. 1990) (relying on legislative history to determine General Assembly‘s intent regarding ambiguous section of the Colorado Governmental Immunity Act). Committee hearings related to the 1993 revision indicate that legislators sought to accomplish two overarching goals: 1) to address continuing concerns about fraud; and 2) to reduce taxpayer costs by streamlining administrative procedures. See Hearings on SB 93-135 Before the Comm. on Bus., 59th Gen. Assembly, 1st Reg. Sess. (Colo. 1993) (statement of Rep. Fleming).
The 59th General Assembly viewed random sampling as an effective way to reduce
Just as we may look back to the legislative history for guidance, so may we look forward to the potential consequences of a particular construction. See
With respect to achieving finality, our ruling does not open the door to any administrative or judicial procedures that do not already exist by explicit legislation. In general, the Secretary‘s line-by-line count is final but subject to cure or protest. The General Assembly provided initiative proponents with the right to cure deficient signatures by filing an addendum containing additional signatures, see
Our holding requires a step, prior to cure or protest, that would have occurred but for human error. There is no dispute that, based on the valid signature numbers presented to us by both the petitioner and the respondents, the statute requires a line-by-line verification. See
For the reasons discussed above, we reverse the district court‘s decision ordering the Secretary to certify the Medical Use of Marijuana initiative to the ballot in the 1998 general election. Furthermore, we disapprove of the Secretary‘s proposal to certify this initiative to the ballot while she conducted a line-by-line signature review. The proper course would have been to conduct the line-by-line review and, if the signatures had been found sufficient, certify the initiative to the ballot for the year 2000 election. This approach is consistent with the statute‘s explicit “Signatures Requirement“:
No petition for any initiated law or amendment to the state constitution shall be of any force or effect, nor shall the proposed law or amendment to the state constitution be submitted to the people of the state of Colorado for adoption or rejection at the polls ... unless the petition ... is signed by the number of electors required by the state constitution.
We also find that to order the Secretary to certify the initiative to the ballot without conducting a line-by-line count would create unfortunate incentives within the initiative process. It is quite clear from this case and other recent cases that initiative petitions generally contain some invalid signatures. Initiative proponents who may not have a sufficient margin for the total signatures to meet the constitutional requirement would be encouraged to file at the last possible date and then challenge a finding of insufficiency on the last possible day. Their hope would be that an error by the Secretary would compensate for their having failed to meet the constitutionally mandated signature requirement. The result would be that whenever the Secretary made a good faith error in finding a petition to contain 90% or fewer valid signatures based on the random sample, the proponents effectively could reduce their valid signature requirement by 10%. That is, an initiative could reach the ballot by attaining as little as 90% of the constitutionally required number. This result would conflict with the basic constitutional signature requirement, and we conclude that the Secretary‘s good faith error cannot stand as the basis to place on the ballot a matter that did not achieve the constitutionally requisite number of petition signatures.34
Finally, Chilcutt argues that to require a line-by-line count in this situation would create “an exception not made by the Legislature.” Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 246 (Colo. 1992) (quoting Karoly v. Industrial Comm‘n, 65 Colo. 239, 245, 176 P. 284, 286 (1918)). We find the opposite to be true. On the record before us, even taken in a light most favor-able to the respondents, the medical use of marijuana petition has 52,312 valid signatures or 96.4% of the constitutionally mandated 54,242 signatures. The respondents have not met the constitutional minimum. To affirm the district court‘s order, as Chilcutt argues we must do, would create an exception to a statutorily and constitutionally mandated signature requirement that the Legislature neither made nor intended.
Consequently, we hold that if, based on a random sample, the Secretary issues a good faith determination of insufficiency in compliance with
III. Conclusion
For the reasons discussed above, we find that the Secretary was required to conduct a line-by-line count of the submitted signatures. As we ordered on October 5, 1998, the case has been remanded to the district court for further proceedings consistent with this opinion.