*1 79SA435 No. and James Collins, Malmsbury Jeannine McKee, John Leary, Sally Don Qualified representatives as the individually Cederberg, A. Louisville, Louisville, v. The City Colorado City Electors Caranci, Lawrence Berry, Howard municipal corporation, Colorado Meier, Norbert Carlo, Kelker and Pizzo, Di Robert Eugene Del Anthony Colorado, Louisville, Council as Members Zenith Company, Waschak, Development and Hanover Mayor John a Colorado Builders, Inc., Corporation, a Colorado WJS corporation, Associates, corporation a Colorado & and William corporation, 969)
(616 P.2d September Decided 1980. *3 Earnest, Richard E. Bump, Gerald A. Caplan, and
Caplan plaintiffs-appellants. Musick, Rautenstraus, Joss; Joss, D. W. Bruce & Curt
Rautenstraus Schwartz, P.C., Williamson, T. & Cope, Stephen Leavenworth Williamson, City and counsel special for defendants-appellees Louisville. Stone, French, Stone for intervenor-
French C. Robert W. Joseph & Hanover Development Company. appellee,
En Banc. delivered the the Court. QUINN JUSTICE opinion This of a legislative body the extent to which the appeal questions mea- emergency ordinance as an an annexation municipality, by adopting sure, reserved to can curtail the initiative and referendum thereby V, 1, Colorado Constitution. Article Section people by elec- qualified Don and four other McKee plaintiffs-appellants, as individually representatives commenced this action and (electors), tors the members of of Louisville City against of all electors of council, com- of Louisville. The mayor, the Louisville to referendum and the electors’ constitutional alleged that plaint initiative were abridged by failure of the named Louisville city offi- ordinance, cials to refer an annexation to the voters of Louisville, their failure to submit to the vote of the electorate an initiated measure merits, ordinance 637. After a repealing trial on the district court ruled that the. electors had no either a referendum or initiative election and dismissed the with We complaint prejudice. reverse judgment of dismissal and remand the cause with directions.
I. 13, 1978, On December Hanover Development Zenith company, Builders, Inc., WJS and William and Corporation Associates (property filed a owners) petition City of Louisville for annexation of cer- 1,407 tain land had assembled. they The land consisted of acres which intended they as both develop residential property regional a com- mercial center known as Centennial Valley Mall. A public hearing on the annexation later, was held on February 1979. One week on 20, 1979, February the Louisville Council introduced and unani- mously on first approved reading ordinance which to annex purported question. ordinance contained an safety clause rendering it effective its upon adoption for the public health, safety welfare. No mention of the emergency clause was made at the February 20 meeting and the ordinance was read title only. At meeting electors orally requested city council to refer the ordi- nance to a vote of the qualified electors of the city. This was request sum- denied and marily public hearing the ordinance was scheduled for 30 later, days March 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 the electors asked the city *4 council what they were required to do in order to the ordinance place be- fore the electorate. The received no response. At the March 20 meeting the council city unanimously adopted ordinance 637.1
Upon adoption ordinance the electors refiled immediately the referendum petition clerk. On city the following day, March 1979, the electors at 8:15 a.m. also filed with the city clerk initiative peti- tions duly executed aby sufficient number of electors. The initia- tive petitions a measure to repeal ordinance 637. The city offi- cials of Louisville refused to submit the initiated measure to the electorate. electors, 21, 1979,
The on March filed an action in the district court the requesting court to the effect of suspend ordinance 637 and to order a election, referendum or alternatively, to order the Louisville officials city 1 20, 1979, city adopted council on March by also ordinance which zoned section the property by residential, agricultural annexed ordinance 637 for commercial and uses.
529 election. On submit it to a popular and to the initiated measure to publish to owners, them inter- district court permitted the of the property motion the a trial on merits in the matter.2 After of their interest vene because on the annex- to referendum right the had no a court held that electors the it clause emergency exempted because the inclusion ordinance ation Colo. Const. of Colorado Constitution. the provision from the referendum had no constitutional V, also held that the electors Sec. 1. The court Art. because, under the Municipal on the initiated measure to an election right 31-12-101 Act), sections of 1965 Annexation (Municipal Act Annexation 31-12-501, 31-12-601, 12), (1977 Vol. neither et seq., Repl. C.R.S. 1973 to annexed the disconnect council nor the electorate have owners. without the consent land V, Section 1 of Col- the electors claim that Article On this appeal them a referendum election on entitles to orado Constitution ordinance,3 in the or at inclusion of an clause despite
637 We it find to an election measure. proposed repeal least initiative claim a referendum elec- regarding to address the electors’ unnecessary to tion, right constitutional clearly as the electors were their deprived initiative.
II.
is
derived from the
“All
vested
political power
people,”
II,
Const. Art.
Colo.
Sec.
government
and all
from the
originates
people.
Anderson,
Colorado
Cause
1;
178 Colo.
495
Project-Common
Annear,
Hudson (1938).
101 Colo.
P.2d
have re
Colorado Constitution
By
express provisions
people
V,
Const. Art.
right
for
to
Sec. 1.
legislate.
served
themselves the
Colo.
order;
grant
it
not a
but
reserva
right
people
This
is of the first
re
E.g.,
In
Legislative Reapportionment,
tion
them for themselves.
initiative
530
vote,
Like the
of initiative is a
power
right
fundamental
at the
E.
Bernzen v.
core of our
g.,
City of
very
government.
form
republican
Boulder,
Wunsch,
81,
Brownlow v.
(1974);
186 Colo.
This court has
construed
always liberally
this fundamental
and,
right,
we have viewed with the closest
concomitantly,
scrutiny
governmental action that has the effect of
free
exercise. E.g.
curtailing its
Buchanan,
32,
Billings
Colorado
v.
192 Colo.
555 P.2d
(1976).
176
Anderson,
Cause v.
Project-Common
Burks v.
supra;
City of
Baker,
61,
Lafayette,
Yenter v.
142 Colo.
Governmental officials have no
power
prohibit
exercise of
the initiative by
prematurely passing
substantive merits of the
upon
in
Brown,
itiated measure. City Rocky Ford v.
293 P.2d
(1956).
Nor
the courts
may
interfere with the exercise of this right by
declaring unconstitutional or invalid a proposed measure before the
has run its course and the
process
measure is actually
adopted.
Brown,
Rocky
Ford v.
supra; Speer
People,
Colo.
III. elec- ordered initiative for a judicially electors’ claim In the rejecting intervening the property the interests of tion, court ruled that the trial and, there- initiated measure affected the by be adversely owners would measure in ad- of that fore, validity determine the court could properly the an advisory opinion court rendered ruling In so vance of its adoption. interests and pre- intervenors’ affecting property not yet on a measure itself. the initiative process empted clothed in the the electors is measure proposed by
The initiated be validity may and its actual validity, with a presümption first instance into law the elec by if and when it is only adopted considered the court by Brown, at 342- People, supra, Ford v. In Rocky supra. Speer torate. on an amend 773-774, initiative election which dealt with an 122 P. at Charter, court articulated clearly opera the Denver ment to in these matters: tive principles of amendment before no interrupt process
“‘The courts have power a constitutional proposal, restrain a vote upon it is complete, popular that the vote will popular be though they may clearly opinion even in the method pro- because of defects already apparent be ineffective and fully completed, is amending process must wait until They posal. if this question properly of the amendment validity then pass upon this view it would them. In accordance with litigation in before presented acts inci- mandamus administrative by seem that the courts should compel . . . .’” amending dent to the process ., . . count for noth- be invalid that a measure may
“Future possibilities, overwhelming necessity obeying plain ing in presence constitution, the distribution of and of inviolate keeping mandates of the themselves, see sovereign in their power, as made until the people made a measure is and adopted .... Not until the change fit to make its validity courts to determine any of the charter have the part . affected, before are are litigants, when actual whose then only them.” owners in this intervening
The interests claimed services, such as water of various municipal case consist of the receipt to the and other benefits incidental services and fire police protection, be le might that such interests Assuming of the annexed zoning property. of the an affected the initiated adversely repeal gally implicated — nothing regard validity nexation ordinance and we intimate — that instance those interests of that claim or the of relief in propriety electorate to do not override the and fundamental legitimate which to them for municipal seek the available redress only unreasonable, offensive. outrightly seem burdensome may election, the initiative not at adopted measure is repealing If the in have been affected will not owners of the property interests claimed entitlement constitutional received their manner, will have and the electors re- hand, measure If, the repealing on the other initiative clause. under 1-40-113, election, section cast at the of the votes majority ceives a will have been preserved the electors right the fundamental desire, then, judicial resort to the if so they owners may the property interest.5 abridgement on their claimed process due *7 initiated neither election on the to an actual Prior elevate the serves to other constitutional any principle of law nor process ab owners to a constitutional intervening property claimed interest of no are entitled to those interests stage of the proceedings solute. At them, and the initiative election affords than that which an more process no less under the Colorado are entitled to electors of Louisville Inc., 426 U.S. City Enterprises, Eastlake v. Forest See Constitution. 2358, 668, (1976). L. Ed. 2d 132 96 S. Ct.
IV. trial court de- with prejudice the electors’ dismissing complaint In no an or- authority pass Council has City termined that “the Louisville without the City prop- from the disconnecting annexed property dinance consent,” Council cannot City and the Louisville “[sjince owner’s erty consent, their from the without City the intervenors’ property disconnect trial ruling, so By voters achieve that initiative.” by neither can the with the electors filed the initiative petitions assumed that when the court 21, 1979, the had been already 8:15 a.m. on March property clerk at city ruling trial court’s was predicated of Louisville. The City annexed on a questionable assumption. on March were filed with the clerk city
The initiative petitions
effective. The Louisville Mu-
ordinance 637 had
become
yet
before
1.16.050,
measures
Code,
that
expressly provides
nicipal
§
case,
fact,
filed in this
when the
was
complaint
effect in five
In
days.
take
the Louisville
been
as
yet
required
637 had not
published
ordinance
municipality
annexation
provements.
of
gants,
final
them in connection
property
Recreation
(1976).
v. Board
Section
question
resolution of this matter. The
whose
owners
31-12-117,
of
ordinance,
which should
and Park
remain
intervening
See
Directors
might
City
are actually
with
effective,
C.R.S. 1973
all acts
acquire
District,
property
Council
of
await
Bancroft
development
including
taken in
affected,
the outcome of the
181 Colo.
(1977
owners
v. Board
vested
issue of
Fire Protection
conformity
subdivision
Repl.
are before the court.
rights
acknowledged
of the land in
whether,
Vol.
of
pursuant
Directors
platting
12),
P.2d 317
election on the initiated
under
provides
District,
during
question
to section 31-12-117
charter and ordinances of the
and construction
of
the circumstances of this
City and
(1973); the trial
that after the effective date
would be at their
South Suburban
38 Colo.
that
App.
and
any steps
measure,
precisely
occupancy
County
peril,
Metropolitan
V. here, Where, as quali case narrow one. in this is a holding Our before and file referendum protest petitions a municipality voters of fied a munici annexation ordinance by of an after immediately adoption on the basis the referendum reject petitions officials municipal and pality, ordinance, and imme safety or clause incorporated of an becomes effective ordinance and before it diately adoption after code, file initiative for petitions voters municipal under the ordinance, voters have con those qualified of the annexation repeal to electorate measure submitted to have that initiated stitutional Constitution, V, and of the Colorado Article Section in accordance with such a case must 1-40-116, officials in municipal section to the submission of implement measures proper take all to the electorate. that measure is remanded to reversed and cause accordingly
The judgment to order an election on the initiated mea- court with directions the district sure. LOHR dissent.
JUSTICE LEE and JUSTICE does not participate. JUSTICE DUBOFSKY dissenting: JUSTICE LOHR initiated certain mandates an election a measure
The majority to lands to annexing of Louisville an ordinance repeal voters of the City dissent. city. respectfully I which been reserved to of initiative and referendum have The powers town, art. Colo. Const. legal every city, municipality by voters of V, are limited powers by qual Sec. are not unlimited but rather powers, ifying language: to this sec- referendum reserved people
“The initiative and
legal
every
voters
town and
city,
tion are
further reserved
hereby
local,
every
all
special
municipal
municipality
added.)
their respective municipalities.” (Emphasis
character in
*9
of
cannot be
of the
initiative
Generally,
prevented
the exercise
power
be unconstitutional
law would
establishing that
initiated
by
proposed
Brown,
Ford v.
Rocky
if it were
or otherwise invalid
adopted.
325,
262,
see
v.
52 Colo.
People,
133 Colo.
However, foregoing a logically necessary exception there is stated, of the of initiative power where the exercise attempted rule. Simply to the there people, reserved power or referendum exceeds scope recognized this by was principle be of that This power. can no exercise 192, 571 1074 Colo. v. 194 Zwerdlinger, court in Aurora
535 referred There, to a challenge proposed court a permitted this (1977). was based on a conten challenge where the of passage measure in advance con was not within the legislation that the character of the proposed tion case, was that a judgment up referendum In power. reserved stitutionally within the referred law was not that a held which declared II, 1, Const. art. Sec. Colo. reserved to voters referendum power in char and not legislative law matters administrative because the treated acter. local, is limited to “all special reserved of initiative power Const, V, character.” Colo. art. Sec. 1. An- every
municipal character; local, rather it subject special municipal nexation is not a the control of the General Assem- of statewide concern within is matter Collins, 79, v. Ft. P.2d 986 Ft. Col. Wtr. Dist. 174 Colo. bly. Denver, See sec- 72, P.2d 648 (1971); Rogers (1966). v. 161 Colo. Discon- 12). in 1977 Vol. (now Repl. tions 31-12-101 to of statewide concern. See de-annexation, nection, or is likewise a matter Denver, sections 31-12-501 to 503 31-12-601 to Rogers supra; v. 12). in 1977 Vol. (now 31-12-701 to C.R.S. 1973 Repl. Collins, Ft. supra, In Ft. Col. Dist. v. this court stated: Wtr. contentions is in answer to the plaintiffs’ “The first fundamental precept that, to the contrary, the absence of constitutional express provisions mu- over annexation of territory has unlimited general assembly power to notice and to legislative and even the nicipalities; denial due of law or the equal pro- vote annexation is not a denial of process upon tection of the laws. . . .” Denver, rule that in general v. this court adopted
In Rogers
supra,
contrary
power
constitutional
to the
provisions
the absence
express
the state is
over the boundaries of
legislature
municipalities
of a state
Shattuck,
See also
Mayor
19 Colo.
Fundamental
principles
and are
government
the convenient administration of
exist for
nicipalities
will of the state. In
instrumentalities created to
out the
carry
merely
Denver,
198,
‘“The at its pleasure with an- unite the whole or a of it (there city), part territorial area of a All this destroy the charter and repeal corporation. other municipality, done, the consent or with or without unconditionally, bemay conditionally citizens, the State or even their In all these against protest. respects to the state con- conforming and its its action legislative body, is supreme, will, Constitu- stitution, by any provision do as it unrestrained may those who . The is in the State and tion of the United States. . . unjust oppressive are alone legislate responsible for the State *10 536
exercise it.’” of over in with its plenary power
The General accordance Assembly, cre for the enacted comprehensive providing municipalities, to munici of annexation organization municipal corporations, ation from municipalities, of disconnection municipalities, consolidation palities, 2, 3 of See articles municipal generally and discontinuance corporations. to relating 1973. statutes annexation and 12 of title The and control the method which disconnection the framework provide who They substantively be delineate objectives may accomplished. these statutory mandates. Ft. compliance may challenge procedural Collins, binding statutes are supra. Dist v. Ft. Since these Col. Wtr. (Colo. rule and towns including home cities municipalities generally, bound follow the XX), legislative bodies are municipal Const. art. legal municipalities mandates. It follows that the voters statutory of to initiate an ordinance that is beyond are without power power view, reasonably to enact. In it cannot be municipal legislative body my to or a is contended that annexation disconnection from a municipality “local, which the subject concerning of character” special municipal exercised may limited of initiative and referendum be the voters powers Therefore, in voters of the of city. initiative power Louisville does not extend to annexations and disconnections. reach whether the of refer- majority power does not the question
endum is with to the annexation ordinance which the respect available reasoning, above dem- seek to discussion plaintiffs repeal. By parity onstrates that it is not.
There is a second reason that referendum is unavailable. Excepted “laws necessary from the of referendum in our constitution are The an the immediate health preservation peace, safety.” public legislative nexation which the seek to undo contains a plaintiffs de it is for those This very purposes. legislative declaration that re subject judicial termination is conclusive this court and not upon Mar, view. Town Bow Colo. 533 P.2d E.g., Lyman Loveland, Colo. 218 P. We Shields City of may have that an clause be recognized previously appropriately County an See Board included in annexation ordinance. Denver, County 565 P.2d Commissioners 212 (1977). refer- reflects that the of initiative and constitution itself in- in the legislative
endum do not extend to the action involved enforcing limits on express stant case. We should be not less scrupulous full and exercise rights than in free constitutionally protected permitting of those within such limits. trial court. judgment
I would affirm the I am authorized to that LEE concurs in this dissent. say JUSTICE
No. 80SA248 of the State of Colorado v. Hubert E. Hurst People (618 1113) September Decided 1980.
Linda Prosecutor, Donnelly, Disciplinary for complainant.
No appearance for attorney-respondent.
En Banc. JUSTICE LEE delivered the of the Court. opinion A formal was filed complaint Court Grievance Supreme Committee against Hurst, Hubert E. him respondent, charging with professional misconduct in violation of the Code of Professional Responsi- bility. unknown, whereabouts of the notice of these respondent being
proceedings given was in accordance with the of the Colorado provisions