Rita MONTERO, Plaintiff-Appellant, v. Natalie MEYER, Secretary of State of the State of Colorado; and State of Colorado, Defendants-Appellees, and Official English Committee, Barbara M. Philips, Mary Ann Carlos, Thaddeus F. Gembczynski, and Chong Cha Woodfill, Intervenors-Appellees.
No. 88SA469.
Supreme Court of Colorado, En Banc.
July 9, 1990.
Rehearing Denied Aug. 20, 1990.
795 P.2d 242
Catharyn A. Baird, Denver, for defendants-appellees.
Shannon A. Robinson, P.C., Shannon A. Robinson and Jeffrey A. Esses, Denver, for intervenors-appellees.
Justice VOLLACK delivered the Opinion of the Court.
In 1987 intervenors-appellees the Official
We affirm.
I.
The parties do not dispute the facts. On October 29, 1987, the intervenors filed with Meyer petitions in support of a proposed initiative to add the Official English Amendment (the amendment) to the Colorado Constitution. The intervenors sought to place the proposed initiative on the ballot for the November 8, 1988, election.3 On November 13, 1987, Meyer verified that the petitions contained more than the 50,668 signatures required to place the proposed initiative on the ballot. On November 27, 1987, Montero filed a timely protest to the signatures on the petitions submitted in support of the proposed initiative on the ground that the signatures had been col-
Montero and three other individuals (the protestants) then filed a complaint in the United States District Court for the District of Colorado claiming that Meyer had violated their rights under the Voting Rights Act by preparing, approving, and circulating, in counties subject to the bilingual provisions of the Voting Rights Act, petitions written only in English. See Montero v. Meyer, 696 F.Supp. 540 (D.Colo. 1988). On September 16, 1988, the United States District Court ruled in the protestants’ favor and granted their request for a preliminary injunction preventing Meyer from holding an election on the initiative. Id. at 551. Meyer appealed the district court‘s ruling to the United States Court of Appeals for the Tenth Circuit.
On September 19, 1988, Meyer entered an order finding that the form of the petitions had been declared insufficient by the district court, and that the intervenors could attempt to cure the deficiencies in the petitions pursuant to
On September 20, 1988, the intervenors constructively withdrew the petitions to attempt to cure the deficiencies. The intervenors’ declaration of constructive withdrawal stated that the intervenors were not conceding that the petitions they originally filed were insufficient under federal or state law, and that they were not waiving their right to appeal the entry of the preliminary injunction. The intervenors rehabilitated the petitions which were invalidated by the federal district court‘s ruling, and collected additional signatures. On October 3, 1988, the intervenors re-filed petitions in support of the initiative. On October 5, 1988, Meyer found that the rehabilitated petitions and the additional petitions contained almost 86,000 signatures, substantially more than the 50,668 signatures required to place the initiative on the ballot.
On October 12, 1988, the Tenth Circuit Court of Appeals reversed the federal district court and lifted the preliminary injunction. Montero v. Meyer, 861 F.2d 603 (10th Cir.1988), cert. denied, --- U.S. ---, 109 S.Ct. 3249, 106 L.Ed.2d 595 (1989). On October 12, 1988, Meyer ruled that the decision of the Tenth Circuit reinstated the signatures which had been invalidated by the district court‘s preliminary injunction. Meyer‘s order stated that Montero had until October 24, 1988, to file an amended protest. On October 24, 1988, Montero filed an amended protest which challenged the petition signatures re-filed by the intervenors on October 3, 1988. Montero‘s amended protest challenged the signatures on the ground that they were submitted within three months of the election in violation of
In November 1988, Montero brought an action for declaratory and injunctive relief in the Denver District Court challenging Meyer‘s certification of the initiative prior to the November 1988 election, and her dismissal of Montero‘s amended protest to the petitions. The district court dismissed Montero‘s complaint. Montero then filed in this court an application for review of the district court‘s order of dismissal.
II.
Montero‘s first contention is that the intervenors’ refiling of the initiative petitions on October 3, 1988, constituted an original filing. Montero argues that Meyer improperly certified the initiative for the ballot because the intervenors made this second original filing within three months of the election, in violation of
In case the petition is declared insufficient in form or number of signatures of registered electors, it may be withdrawn
by a majority in number of the persons representing the signers of such petition and, within fifteen days after the insufficiency is declared, may be amended or additional names signed thereto as in the first instance and refiled as an original petition.
In order to address Montero‘s claim we must decide whether the intervenors’ attempt to comply with the cure provision of
(1) In enacting a statute, it is presumed that:
(a) Compliance with the constitutions of the state of Colorado and the United States is intended;
(b) The entire statute is intended to be effective;
(c) A just and reasonable result is intended;
(d) A result feasible of execution is intended;
(e) Public interest is favored over any private interest.
We addressed a similar question in Brownlow, 103 Colo. 120, 83 P.2d 775. In Brownlow, the Secretary of State invalidated signatures submitted by proponents of a ballot initiative. The proponents of the initiative withdrew the petitions in order to rehabilitate invalidated signatures and supply additional signatures. The proponents later re-filed the petitions, which contained approximately 7,000 rehabilitated signatures and 10,000 new signatures. Opponents of the ballot initiative attacked the re-filed petitions on the ground that they had been filed more than six months after the date on which the titles and submission clauses were provided to the Secretary of State, in violation of a state statute.8 Id. at 127, 83 P.2d at 778. We rejected their argument. We noted that the deadline was not invoked a second time by the language in the cure statute providing that after amendment the petition could be re-filed “as an original petition.” Id. at 129, 83 P.2d at 779. We stated that this language was intended to proclaim “that after having been refiled the amended petition, in legal effect, is to be considered as an original petition, but [the language does] not import that status so as to invoke the limitation controlling the initial filing of the rejected initial petition.” Id. This court held that “the sponsors have the specified six months within which to secure signatures and file their petition, and in the event of protest and rejection of the petition, at their election they are entitled, as a matter of course, to refile the petition within fifteen days even though the refiling date may fall beyond the six-months period.” Id.
In this case, the provision in
Our interpretation of
Montero relies on Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958). In Christensen, the proponents of a ballot initiative submitted the petitions in support of the initiative on the last day then allowed by
In this case the signatures contained in the petitions submitted by the intervenors were sufficient in form and number at the time they were originally submitted on October 29, 1987. The petitions were declared insufficient as to form by Meyer as a result of the United States District Court decision on September 19, 1988. The United States District Court decision was reversed on October 12, 1988, restoring all of the original signatures submitted in the original petitions filed in October 1987. Montero‘s reliance on Christensen is misplaced since the petitions in Christensen submitted originally were insufficient in number and could not be cured by subsequent filings.
III.
Montero next argues that the Denver District Court erred in holding that the Secretary of State had the authority to certify an initiative for the ballot on the same date that she issued an official determination that the signatures submitted by the proponents of the initiative were insufficient in form to qualify that measure for the ballot. Montero relies on
The secretary of state, at the time he certifies to the county clerks of the several counties the names of the candidates for state and district offices for general election, shall also certify to them the ballot titles and numbers of each initiated and referred measure theretofore filed in his office to be voted upon at such election.
Title 1 of the Colorado Revised Code establishes a series of steps which make up the initiative and referendum process. See
The facts of this case illustrate this point. When Meyer certified the ballot title and number of the initiative to the county clerks, a federal district court had ruled there was a rebuttable presumption that the petitions were insufficient due to their failure to conform to the Voting Rights Act.12 Meyer had appealed that decision to the Tenth Circuit. The intervenors were taking advantage of the cure provisions of
The Denver District Court correctly held that Meyer had the authority to certify an initiative for the ballot.
IV.
Finally, Montero argues that Meyer improperly dismissed her amended protest to the petitions, and that Meyer was estopped from dismissing the amended protest.
Montero‘s arguments are based on the unusual sequence of events in this case. Montero, on November 27, 1987, filed a verified protest to the petitions on the ground that the federal Voting Rights Act had been violated and that irregularities in petition signatures violated certain Colorado statutes. On December 15, 1987, Meyer held a hearing on the verified protest. Meyer ruled that she was without jurisdiction to rule on the Voting Rights Act violations. She further ruled that the portion of the protest concerning irregularities under Colorado statutes failed to specify by petition number and line the specific signatures that were not valid under Colorado statutes. Meyer denied the protest and
On September 19, 1988, three days after the federal district court entered its preliminary injunction, Meyer entered an order finding the petitions insufficient in form. Meyer‘s order gave the intervenors until October 3, 1988, to re-file the petitions pursuant to the cure provisions of
On October 12, 1988, the date the Tenth Circuit vacated the preliminary injunction issued by the federal district court, Meyer informed Montero that she had until October 24, 1988, to file an amended protest. Montero filed an amended protest on October 24, 1988, which asserted various challenges to the sufficiency of the petitions declared valid by the Tenth Circuit. On November 2, 1988, Meyer dismissed Montero‘s amended protest as untimely.
Montero first argues that Meyer‘s dismissal of the amended protest constituted a denial of statutory procedural rights and fundamental fairness.
Under
The original petitions filed October 29, 1987, had been validated by the Secretary of State as containing 98,593 signatures. To place the question on the ballot, 50,668 signatures were needed. The United States District Court ruled that it was a rebuttable presumption that the petitions were circulated in one or more of twelve counties deemed to be bilingual, and in violation of the Voting Rights Act since petitions were not circulated in Spanish and English in those counties. Meyer determined that 36,874 signatures did not fall into the bilingual violation classification and, based on the district court‘s ruling, the petitions lacked 13,794 signatures needed to place the initiative on the ballot.
The Tenth Circuit Court of Appeals reinstated the original 98,593 signatures which had been protested in December 1987. To allow further protest of the original signatures after the expiration of the statutory period for such protest would violate the plain reading of the statute. The period of time which Montero had to amend her protest expired on December 28, 1987, and the statute does not authorize the Secretary of State to enlarge the time period once it has expired. Montero‘s failure to submit her amended protest to the original petitions within 10 days of denial of the protest on December 15, 1987, precluded her from making further objections to the original petitions under
Montero also argues that Meyer was estopped from dismissing her amended protest because Meyer had notified Montero that she could file a protest on or before October 24, 1988. Meyer‘s action of October 12, 1988, in authorizing an amended protest as to the original petitions exceeded her statutory authority since the statute does not provide for extensions of time to file an amended protest once the time for filing has expired.
Judgment affirmed.
QUINN, J., dissents, and MULLARKEY, J., joins in the dissent. KIRSHBAUM, J., joins in part III. of the dissent.
Justice QUINN dissenting:
I respectfully dissent. In contrast to the majority, I view the actions of the Secretary of State (secretary) in certifying the initiative for the ballot, and in later dismissing Rita Montero‘s amended protest, as contrary to law. Considerations of basic fairness lead me to conclude that Montero should be afforded a hearing on her amended protest before the initiative measure can be validly accepted as part of the Colorado Constitution.
I.
Because the power of the initiative is a state-created right, a review of Colorado‘s legal framework for the initiative and protest processes, as they existed during the events in question, should prove helpful to a proper understanding of the legal significance of the secretary‘s actions in this case.
A.
The first power hereby reserved by the people is the initiative, and signatures by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election shall be required to propose any measure by petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions for state legislation and amendments to the constitution, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state at least three months before the general election at which they are to be voted upon.
This provision of the constitution is “in all respects self-executing.”
All petitions which have attached thereto an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing such petition was at the time of signing a registered elector shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors, unless a protest in writing, under oath, is filed in the office in which such petition has been filed by some registered elector, within thirty days after such petition is filed, setting forth with particularity the grounds of such protest and the names protested. Whereupon the officer with whom such petition is filed shall forthwith mail a copy of the protest to the persons named in such petition as representing the signers thereof at the addresses therein given, together with a notice fixing a time for hearing the protest not less than five nor more than twenty days after such notice is mailed. If, at such hearing, such protest is denied in whole or in part, the person filing the same, within ten days after such denial, may file an amended protest, a copy of which shall be mailed to the persons named in the petition and on which a hearing shall be held as in the case of the original protest; but no person shall be entitled to amend an amended protest. (Emphasis added).1
B.
In October 1987, the Official English Committee submitted to the secretary signed petition forms containing signatures in support of an initiative petition for a constitutional amendment declaring the English language to be the official language of the state of Colorado. On November 27, 1987, Montero filed a timely protest to the petition, and the secretary conducted a protest hearing on December 15, 1987. The purpose of the hearing was to determine whether the initiative petition contained a sufficient number of valid signatures for placement of the initiative measure on the ballot at the general election on November 8, 1988. When it became apparent during the protest hearing that Montero was claiming that the petition forms were printed in English only but were circulated in several language-minority counties in possible violation of the federal Voting Rights Act,
On June 10, 1988, Montero filed a claim for declaratory and injunctive relief in United States District Court for the District of Colorado. The federal district court, on September 16, 1988, entered a preliminary injunction enjoining the state of Colorado from conducting an election on the English as Official Language petition initiative. Montero v. Meyer, 696 F.Supp. 540 (D.Colo.1988). The secretary appealed the district court‘s ruling to the Tenth Circuit Court of Appeals.
September 19, 1988, is one of the critical dates in this case. On that day the secretary ruled that because the federal district court had determined that a large number of signatures on the petition forms were presumptively invalid under the federal Voting Rights Act, the Official English Committee would be permitted to submit additional signatures and to amend the petition in a manner consistent with the federal district court‘s ruling. The secretary further ruled that, pursuant to
On October 12, 1988, the Tenth Circuit Court of Appeals reversed the federal district court‘s preliminary injunction and held that the minority language provisions of the Voting Rights Act did not apply to the English as Official Language initiative petition. Montero v. Meyer, 861 F.2d 603 (10th Cir.1988). On that same day the secretary issued a new ruling in which she concluded that the federal litigation was “part of the appellate process from the original protest filed in late 1987” and the effect of the circuit court‘s decision was to reinstate the original signatures declared presumptively invalid by the federal district court. In this ruling the secretary expressly authorized Montero to file an amended protest, and Montero did so on October 24, 1988, within the time expressly designated by the secretary. Montero‘s amended protest included challenges to a myriad of petition signatures on grounds authorized by Colorado law. The secretary set Montero‘s amended protest for hearing on November 2, 1988.
On the date of the hearing on Montero‘s amended protest, the secretary, acknowledging that statutory law was unclear on the issue, reversed her previous decision authorizing the amended protest and granted the Official English Committee‘s motion to dismiss the amended protest as untimely filed. The secretary ruled that, because a previous hearing was conducted on Montero‘s original protest on November 27, 1987, and her protest was dismissed at that time, Montero had ten days from the original protest hearing to file an amended protest. Noting that Montero had not filed an amended protest within the ten day period and instead had chosen to pursue remedies in state and federal courts, the secretary concluded that Montero‘s right to file an amended protest had been abandoned. Montero unsuccessfully sought judicial review in the Denver District Court, and thereafter applied for review by this court pursuant to
In my view, the secretary acted contrary to law on September 19, 1988, when she certified the English as Official Language initiative petition for the ballot at the general election on November 8, 1988, while simultaneously finding that the signatures on the initiative petition were insufficient in number for ballot certification. Colorado‘s statutory scheme regarding initiative measures precluded the secretary from certifying the initiative in the absence of the requisite number of valid signatures on the petition at the time of the certification.
The secretary ruled on September 19, 1988—the fiftieth day preceding the November 8 election—that 36,874 valid signatures appeared on the initiative petition and that this number was 13,794 less than the 50,668 signatures required for certification. Nevertheless, on that same day, the secretary certified the initiative for the ballot by reasoning that the federal district court had enjoined the state from holding an election but not from certifying the initiative for the ballot. The federal district court‘s ruling, however, only addressed the question of whether the minority language provisions of the Voting Rights Act were applicable to the initiative petition, and not the nature and extent of the secretary‘s authority under Colorado law for certification of a ballot title with respect to a state constitutional amendment. It is state law, not federal law, that defines the secretary‘s authority, as well as the limitations on that authority, with respect to ballot certification. Having determined on September 19, 1988, that the number of signatures on the initiative petition were substantially short of the number required by Colorado law for ballot certification, the secretary was without authority to certify the initiative petition for placement on the ballot.
The fact that the Official English Committee submitted additional signatures that put the number of signatures over the minimum number required for certification does not serve, in my view, to legitimize the secretary‘s prior act of certification
The secretary was not without an appropriate remedy to preserve the English as Official Language initiative petition for adoption or rejection at an election. The constitutional provision with respect to the initiative is intended to be self-executing in all respects.
III.
Independently of the secretary‘s action in certifying the initiative petition for the ballot, I would apply the doctrine of equitable estoppel to this case and hold that the secretary was precluded from dismissing Montero‘s amended protest without providing Montero with a hearing on the merits of the amended protest. The estoppel doctrine is available against the government in order to prevent manifest injustice to a person adversely affected by governmental action. “The doctrine is founded upon principles of fair dealing and is designed to aid the law in the administration of justice where, without its aid, injustice might result.” Colorado Water Quality Control Comm. v. Town of Frederick, 641 P.2d 958 (Colo. 1982); Denver v. Stackhouse, 135 Colo. 289, 310 P.2d 296 (1957); Crawford v. McLaughlin, 172 Colo. 366, 376, 473 P.2d 725, 730 (1970). The elements necessary for a proper application of equitable estoppel to the facts of this case are the following: the secretary must have known the facts; the secretary must have intended that her conduct be acted on or must so have acted that Montero had the right to believe the secretary‘s conduct was so intended; Montero must have been ignorant of the true facts; and Montero must have relied upon the secretary‘s conduct to her detriment. Dep‘t of Health v. Donahue, 690 P.2d 243 (Colo. 1984); see City and County of Denver v. Bergland, 695 F.2d 465 (10th Cir. 1982).
All the elements of estoppel are present in this case. The secretary, who was responsible for administering the law applicable to the initiative and protest processes, undoubtedly was aware of the facts of this case. The secretary‘s order permitting Montero to file an amended protest not later than October 24, 1988, was such that Montero had a right to believe that the secretary‘s order was intended to permit the amended protest to be filed, to be set for hearing, and to be resolved on the merits. Furthermore, because the secretary obviously believed that she had the authority to authorize an amended protest, it cannot reasonably be argued that Montero had any reason to believe the secretary‘s decision was not authorized by law. Finally, there is every indication in the record that Montero relied upon the secretary‘s order by investing many hours in preparing the amended protest and suffering the obvious detriment of never being afforded an opportunity to establish the insufficiency of the requisite number of signatures on the initiative petition.
The majority reasons that because the secretary‘s action was unauthorized, estoppel cannot apply to the facts of this case. This conclusion, in my view, begs the question by presuming that the secretary was without legal authority to permit Montero to file the amended protest. There is nothing in Colorado statutory law expressly precluding the secretary‘s action in granting Montero the opportunity to file an amended protest. Indeed, the secretary in her dismissal ruling acknowledged the un-
At the very least, the unique circumstances present here compel the application of the “unique circumstances” doctrine. We have applied that doctrine when a party reasonably relies and acts upon an erroneous or misleading statement or ruling by a trial court regarding the time for filing a motion. Converse v. Zinke, 635 P.2d 882 (Colo.1981). In this case, Montero, relying upon the explicit ruling of the secretary, filed an amended protest within the time authorized by the secretary, but was denied any opportunity to establish her claim, set forth in the amended protest, that the initiative petition did not validly conform to the requirements of state law for ballot certification.
IV.
I fully endorse the proposition that the people‘s constitutional right to the initiative process is to be liberally construed in a manner allowing the greatest possible exercise of that right. ville” cite=“200 Colo. 525” pinpoint=“525” court=“Colo.” date=“1980“>McKee v. City of Louisville, 200 Colo. 525, 525, 616 P.2d 969 (1980). Liberal construction of the right of initiative, however, should not be such as to preclude a registered elector from challenging an initiative petition on the grounds that such petition does not conform to the requirements of state law. One of the obvious purposes of the protest process is to preserve the purity of elections by protecting against mistake, fraud, and other abuses in the initiative process. Clark v. City of Aurora, 782 P.2d 771, 777 (Colo. 1989).
It well may be that the proponents of the English as Official Language initiative petition did obtain the sufficient number of valid signatures to place the initiative petition on the ballot for the November 1988 election. There also is a distinct possibility, however, that a sufficient number of signatures were not in conformity with state law. Unfortunately, the actions of the secretary precluded any resolution of this question and, for all practical purposes, insulated the initiative process from any meaningful judicial review.
In light of the substantial procedural infirmities inherent in the manner in which the initiative petition was certified for the ballot, and in the manner in which Montero‘s amended protest was summarily dismissed, I would reverse the judgment of the district court and remand this matter to that court with directions to return the case to the secretary for the purpose of conducting a hearing on Montero‘s amended protest, the results of which should then be certified to the district court for judicial review. I accordingly dissent from this court‘s affirmance of the judgment.
KIRSHBAUM, J., joins in Part III of the dissent.
MULLARKEY, J., joins in the dissent.