Certiorari Denied February 21, 1995. See 115 S.Ct. 1112.
Justice MULLARKEY delivered the Opinion of the Court.
Plaintiffs, citizens and taxpayers of the City and the County of Boulder, brought this action
The facts relevant to our disposition of this appeal are not in dispute.
School District Question 1
In the fall of 1993 the School District distributed a "NOTICE OF ELECTION TO INCREASE TAXES/TO INCREASE DEBT" to all registered voters within its
Five days prior to the election, plaintiffs filed suit in the Boulder County District Court claiming that School District Question 1 violated Amendment 1 by (1) seeking approval of a "consolidated" debt and tax increase; (2) seeking approval of "unlimited general obligation bonds"; (3) seeking to exempt the School District from "future voter approval of tax rate increases"; (4) failing to include the "text" of the ballot issue in the election notice; and (5) failing to include in the election notice a proper estimate of the School District's "first full fiscal year spending." The plaintiffs' complaint sought declaratory and injunctive relief for these alleged violations.
In granting the School District's motion to dismiss plaintiffs' claims, the trial court found that School District Question 1 did not constitute a "consolidation" of ballot issues in violation of subdivision 3(a) of Amendment 1. The court instead ruled that Question 1 contained a permissible combination of two related subjects, the incurrence of debt and the collection of taxes to repay that debt, in the same ballot issue. It also found that School District Question 1 did not violate subdivision 4(a) of Amendment 1 because that section does not specifically prohibit "voter approval at a given election of mill levy increases in
City Question B
Plaintiffs have challenged only two of the nine issues placed on the November 1993 ballot by the City. Both of these issues were approved by a majority of the electorate. The first ballot issue challenged by plaintiffs, City Question B, proposes that the City grant a franchise to Public Service Company of Colorado, Inc. (Public Service) to sell and distribute gas and electricity to the City and its residents. Plaintiffs claim that City Question B violates subdivision 3(c) of Amendment 1 because it "seeks a tax increase" yet its ballot title does not begin with the words "SHALL (DISTRICT) TAXES BE INCREASED...." The ballot title for City Question B reads in relevant part:
The trial court initially noted that the "application of [Amendment 1] to a ballot issue dealing primarily with something other than taxes, but containing authorization for a future tax contingent on unlikely future events, raises intriguing issues." It rejected plaintiffs' claim, however, because they failed to allege that the omission of the words "SHALL (DISTRICT) TAXES BE INCREASED" at the beginning of the ballot title could have affected the outcome of the election. It also noted that the ballot title for City Question B "did comply with the requirements of [Amendment 1], and that [the City] accurately described the issues on which the voters were asked to pass judgment."
City Question C
Plaintiffs also claim that City Question C, which proposes to increase the City's debt by $50,000,000 through the issuance and payment of bonds for the purpose of acquiring open space real property, violates several provisions of Amendment 1.
Plaintiffs argued in the trial court that City Question C violated Amendment 1 by (1) seeking approval of a consolidated debt and tax increase; (2) failing to state a dollar amount of the proposed ad valorem tax increase; (3) seeking to exempt the City from future voter approval of bond refunding and tax increases; and (4) failing to provide adequate information about City Question C in the election notice. The City filed a counterclaim, requesting a declaratory judgment from the trial court that City Question C complied with Amendment 1 because the bonds and taxes described in that ballot question had been previously approved by a vote of the electorate in 1971. See supra note 4. The trial court rejected each of plaintiffs' claims.
County Question A
The final ballot issue challenged by plaintiffs is County Question A, a lengthy proposal seeking authorization for the County to increase taxes by $6.5 million annually through the imposition of a 0.25% sales and use tax and for the County to issue up to $40 million in bonds payable solely from such sales and use tax revenues, all for the express purpose of acquiring and maintaining trails and open space real property. This question was answered in the affirmative by a majority of the voters in the November 1993 election. The
SHALL BOULDER COUNTY TAXES BE INCREASED $6.5 MILLION ANNUALLY (FIRST FULL FISCAL YEAR DOLLAR INCREASE) THROUGH A SALES AND USE TAX OF 0.25% (ONE QUARTER OF ONE PERCENT) BEGINNING JANUARY 1, 1994 AND ENDING DECEMBER 31, 2009, WITH PROCEEDS USED FOR TRAILS AND OPEN SPACE ACQUISITION AND MAINTENANCE AS MORE PARTICULARLY SET FORTH IN BOARD OF COUNTY COMMISSIONERS' RESOLUTION 93-174; AND SHALL BOULDER COUNTY DEBT BE INCREASED UP TO $40 MILLION WITH A REPAYMENT COST OF UP TO $50 MILLION PAYABLE SOLELY FROM A PORTION OF THE PROCEEDS OF SAID 0.25% SALES AND USE TAX, WHICH AUTHORIZATION SHALL INCLUDE AUTHORITY TO REFUND SUCH BONDS AND REFUNDING BONDS WITHOUT ADDITIONAL VOTER APPROVAL; AND SHALL BOULDER COUNTY BE AUTHORIZED TO RECEIVE AND SPEND THE FULL REVENUES GENERATED BY SAID 0.25% SALES AND USE TAX AND THE PROCEEDS OF SAID BONDS DURING 1994 AND EACH SUBSEQUENT YEAR WITHOUT LIMITATION OR CONDITION AND WITHOUT LIMITING IN ANY YEAR THE AMOUNT OF OTHER REVENUES THAT MAY BE COLLECTED AND SPENT BY BOULDER COUNTY? "SHALL A COUNTY-WIDE ONE QUARTER OF ONE PERCENT (0.25%) SALES AND USE TAX BE IMPOSED IN THE COUNTY OF BOULDER BEGINNING JANUARY 1, 1994 AND ENDING DECEMBER 31, 2009, EXEMPTING THEREFROM SALES AND PURCHASES OF CERTAIN ITEMS, INCLUDING, BUT NOT LIMITED TO, FOOD, FUEL, AND ENERGY FOR RESIDENTIAL LIGHT, HEAT AND POWER, AND MACHINERY AND MACHINE TOOLS, THE NET PROCEEDS OF WHICH SHALL BE EXPENDED FOR ACQUIRING, DEVELOPING NECESSARY ACCESS TO, AND PRESERVING OPEN SPACE REAL PROPERTY"... AND WATER RIGHTS TO BE USED IN CONNECTION WITH OPEN SPACE LANDS ...; AND SHALL THE COUNTY OF BOULDER BE AUTHORIZED TO CREATE A SPECIAL FUND TO BE KNOWN AS THE "BOULDER COUNTY OPEN SPACE SALES AND USE TAX CAPITAL IMPROVEMENT FUND" (THE "FUND") AND TO ISSUE SALES AND USE TAX REVENUE BONDS (THE "BONDS") IN AN AGGREGATE AMOUNT OF $40 MILLION ... TO BE USED FOR CAPITAL IMPROVEMENTS INCLUDING ACQUISITION OF INTERESTS IN OPEN SPACE REAL PROPERTY ..., AND DEPOSIT A PORTION OF THE REVENUES OF THE SAID SALES AND USE TAX INTO THE FUND, PLEDGED TO THE REPAYMENT OF THE BONDS ..., WHICH AUTHORIZATION SHALL INCLUDE AUTHORITY TO REFUND SUCH BONDS AND REFUNDING BONDS WITHOUT ADDITIONAL VOTER APPROVAL; AND SHALL THE COUNTY OF BOULDER BE AUTHORIZED TO RECEIVE AND EXPEND THE FULL SALES AND USE TAX REVENUES AND THE PROCEEDS OF THE BONDS AND REFUNDING BONDS AUTHORIZED BY THE PASSAGE OF THIS MEASURE, AND TO BUDGET AND APPROPRIATE SUCH REVENUES, PROCEEDS AND EXPENDITURES APART FROM ANY OTHER EXPENDITURE OF THE COUNTY WHICH MAY BE LIMITED PURSUANT TO [AMENDMENT 1], AND THE REVENUES AND PROCEEDS AUTHORIZED FOR COLLECTION, RECEIPT AND EXPENDITURE BY THE PASSAGE OF THIS MEASURE SHALL NOT BE COUNTED IN ANY SUCH FISCAL YEAR SPENDING OR EXPENDITURE LIMITATION; ALL THE FOREGOING BEING IN ACCORDANCE WITH THE PROPOSAL SET FORTH IN RESOLUTION NO. 93-174 OF THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY
Plaintiffs claim that County Question A violates Amendment 1 in that: (1) its ballot title constitutes an improper "consolidation" of ballot issues under subdivision 3(a) of Amendment 1; and that (2) the ballot title violates section 1-40-106(2), 1B C.R.S. (1993 Supp.), by presenting two separate questions to the voters and thus creating an ambiguity in the meaning of a "yes" or "no" vote on this proposal. The trial court rejected these claims for the reasons stated above in our discussion of School District Question 1 and City Question B. It specifically found that "under well-established Colorado law," the bonds involved in County Question A were "revenue bonds" and, as such, did not constitute "bonded debt" for purposes of Amendment 1's anti-consolidation clause.
The first issue raised by plaintiffs on appeal pertains to the standard of review of claims brought to enforce the election provisions of Amendment 1. See Colo. Const. art. X, § 20(1) (stating that "[i]ndividual or class action enforcement suits may be filed" under that amendment). They contend, first, that the trial court erred in reviewing their Amendment 1 claims under a "substantial compliance" standard, see Meyer v. Lamm, 846 P.2d 862, 875-77 (Colo.1993), and should have reviewed such claims instead under "strict scrutiny" analysis. See Evans v. Romer, 854 P.2d 1270, 1275 (Colo.1993) ("Laws that are subject to strict scrutiny review will be sustained only if they are supported by a compelling state interest and narrowly drawn to achieve that interest in the least restrictive manner possible."). Plaintiffs also assert that the trial court erred in rejecting their claims on the basis that plaintiffs failed to plead that the alleged violations of Amendment 1 would have affected the election results.
Plaintiffs' contention that "strict scrutiny" analysis applies to violations of Amendment 1 is based primarily on their view that Amendment 1 creates a new "fundamental right" to vote on any measure involving an increase in taxes or governmental debt. We disagree.
It is axiomatic that "the right to vote is a fundamental right of the first order." Meyer, 846 P.2d at 874; Erickson v. Blair, 670 P.2d 749, 754 (Colo.1983). Thus, citizens have the right to be free from restrictions that deny the franchise or render its exercise so difficult and inconvenient as to amount to the denial of the right to vote. Moran v. Carlstrom, 775 P.2d 1176, 1180 (Colo.1989). The question posed by plaintiffs in this case, however, is whether Amendment 1 is properly viewed as creating a new form of that right for purposes of substantive due process analysis. To decide this question, we must first examine the plain language of Amendment 1.
The title of Amendment 1 is the "Taxpayer's Bill of Rights." The provisions of the amendment are worded, however, not as creating "rights" vested in Colorado's taxpayers but as imposing limitations on the spending and taxing powers of state and local government. For example, the "preferred interpretation" of Amendment 1 is that which "reasonably restrain[s] most the growth of government." Colo. Const. art X, § 20(1). Similarly, Amendment 1's provisions governing ballot titles and election notices for tax and debt increases are worded in terms of what actions districts
The only provision cited by plaintiffs which refers to the exercise of the voter franchise is the requirement imposed on districts to seek "voter approval in advance" for any new tax or debt increases. Id. § 20(4)(a). That provision does not give rise, however, to a new substantive voting right as plaintiffs suggest. Since 1910 the citizens of Colorado have reserved to themselves "the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly." Colo. Const. art. V, § 1. Amendment 1 is a perfect example of the people exercising their initiative power to enact laws in the specific context of state and local government finance, spending and taxation. Thus, Amendment 1's requirement of electoral approval is not a grant of new powers or rights to the people, but is more properly viewed as a limitation on the power of the people's elected representatives.
This conclusion is consistent with the principle that the Colorado Constitution, unlike the federal constitution, does not comprise a grant of power to the legislative branch, but rather is a restriction on that power. All legislative power which is not limited by the Colorado Constitution is vested in the people. Colo. Const. art. II, § 1; Reale v. Board of Real Estate Appraisers, 880 P.2d 1205, 1207-08 (Colo.1994); Colorado State Civil Serv. Employees Ass'n v. Love, 167 Colo. 436, 447, 448 P.2d 624, 628 (1968). Accordingly, we find no support for plaintiffs' contention that Amendment 1 creates in the citizens of Colorado a new "fundamental right" to vote on debt and tax ballot issues.
Plaintiffs claim, alternatively, that strict scrutiny review applies in this case simply because the text of Amendment 1 contains highly detailed provisions. However, it cannot plausibly be argued that a constitutional provision triggers heightened scrutiny merely because its language is detailed or otherwise specific. Under that analysis, claims under the highly detailed provisions in the Colorado Constitution governing, for example, games of chance and the state-supervised lottery would have to be reviewed under strict scrutiny. See Colo. Const. art. XVIII, § 2. We decline to adopt such an unprecedented approach to constitutional interpretation.
We also find unpersuasive plaintiffs' attempt to analogize alleged violations of Amendment 1 to the taking of property by state and local governments without just compensation. Plaintiffs contend that governmental entities should be subjected to the same heightened scrutiny in Amendment 1 cases as they are when they exercise the power of eminent domain because, in both cases, "the government will be the pecuniary beneficiary of its own actions." However, it is well established that the "power to assess and collect taxes is separate and distinct from the power to take private property for a public use." Burtkin Assocs. v. Tipton, 845 P.2d 525, 529 (Colo.1993); see also Houck v. Little River Drainage District, 239 U.S. 254, 264, 36 S.Ct. 58, 61, 60 L.Ed. 266 (1915). Accordingly, violations of Amendment 1, the principal purpose of which is to regulate the manner and extent of state and local taxation and spending, do not implicate the policy favoring strict construction of eminent domain statutes. See Town of Red Cliff v. Reider, 851 P.2d 282, 284 (Colo.App.1993).
The real issue raised by plaintiffs is whether courts should require districts to meet a "strict compliance" or a "substantial compliance" standard in Amendment 1 enforcement cases. See Meyer, 846 P.2d at 875-78. Unless an election regulation expressly declares that strict compliance with its requirements is essential, courts should construe such provisions to be directory in nature and not mandatory. See, e.g., Young v. Simpson, 21 Colo. 460, 462, 42 P. 666, 667 (1895); accord People ex rel. Johnson v. Earl, 42 Colo. 238, 252, 94 P. 294, 298-99 (1908) (holding that "the will of the electors, when fully and freely expressed, will not be defeated by a strict and technical construction of the law"). Imposing a requirement of strict compliance with voting regulations, especially
Accordingly, under the principles set forth above, we hold that a "substantial compliance" standard is the proper measure when reviewing claims brought to enforce Amendment 1's election provisions. In determining whether a district has substantially complied with a particular provision of Amendment 1, courts should consider factors including, but not limited to, the following: (1) the extent of the district's noncompliance with respect to the challenged ballot issue, that is, a court should distinguish between isolated examples of district oversight and what is more properly viewed as systematic disregard of Amendment 1 requirements, (2) the purpose of the provision violated and whether that purpose is substantially achieved despite the district's noncompliance, and (3) whether it can reasonably be inferred that the district made a good faith effort to comply or whether the district's noncompliance is more properly viewed as the product of an intent to mislead the electorate. See, e.g., Meyer, 846 P.2d at 876 (ballot substantially complies with election law if "the spirit and intention of the law is not violated, although a literal construction would vitiate it"); Kelly v. Novey, 136 Colo. 408, 410, 318 P.2d 214, 215-16 (1957) (only if violation of election law prevented realization of the "true will and purpose of the voters" will election results be set aside); see also Erickson, 670 P.2d at 754 (absentee ballot fails even a "substantial compliance" standard where a showing of "fraud, undue influence, or intentional wrongdoing" is made).
We now address plaintiffs' contention that the trial court erred in dismissing their claims on the ground that plaintiffs failed to allege facts showing that the election results would have been different had the claimed violations of Amendment 1 not occurred. We agree that no such pleading requirement applies to actions brought under Amendment 1's enforcement clause.
In Abts v. Board of Educ. of School District RE-1, 622 P.2d 518, 522 (Colo.1980), a case involving a challenge to the validity of a school bond election, we held that "[w]here the complaint does not allege facts showing that the irregularities complained of changed the result of the election, the complaint does not state a claim." See also Jardon v. Meadowbrook-Fairview Metro. District, 190 Colo. 528, 533, 549 P.2d 762, 765 (1976). In determining whether this common law pleading requirement applies to claims brought under Amendment 1, we begin with the text of that amendment.
Amendment 1 states that "[i]ndividual or class action enforcement suits may be filed" under that amendment and that such suits have "the highest civil priority of resolution." Colo. Const. art. X, § 20(1). Amendment 1 then sets forth in detail the proper form and content of ballot titles and election notices for ballot initiatives involving district tax or debt increases. See Colo. Const. art. X, § 20(3) & 20(4). Although Amendment 1 does not expressly vitiate the pleading requirement established in the Abts line of cases, in our view any reasonable interpretation of Amendment 1's enforcement clause precludes our recognition of
A requirement that a plaintiff allege facts showing that the election results would have been different had the claimed violations not occurred would make enforcement of Amendment 1's provisions effectively impossible in most elections. When we consider that legal voters may not be compelled to disclose their vote or the reasons behind their vote, Mahaffey v. Barnhill, 855 P.2d 847, 850 (Colo.1993), it is unclear how a plaintiff filing an enforcement suit under Amendment 1 could overcome a motion to dismiss on the pleadings except in the rarest of circumstances.
Accordingly, we hold that a plaintiff suing under Amendment 1's enforcement clause need not set forth in his or her complaint facts showing that the claimed violations of Amendment 1 affected the election results.
We next address plaintiffs' claim that School District Question 1, City Question C and County Question A each violated Amendment 1, subdivision 3(a)'s prohibition against the "consolidation" of ballot issues involving "bonded debt." Plaintiffs interpret subdivision 3(a) to forbid districts from seeking approval, in a single ballot title,
Amendment 1 reads in pertinent part as follows:
Colo. Const. art. X, § 20(3)(a) (emphasis added). The terms "bonded debt" and "consolidate" are not defined in Amendment 1. In order to decide whether the ballot issues in this case violate subdivision 3(a), we must first determine whether a "consolidation" of "bonded debt" issues has occurred. In making this determination, we are guided by several principles of statutory construction.
First, all provisions of Amendment 1 "supersede conflicting state constitutional, state statutory, charter, or other state or local provisions." Id. § 20(1) (emphasis added). A conflict exists when one provision
As we noted above, Amendment 1 is silent on the meaning of the term "consolidation," notwithstanding the fact that Amendment 1 does provide definitions for several of its key terms. See Colo. Const. art. X, § 20(2) ("Term definitions"). We therefore presume that this term was included in Amendment 1 in reference to the pre-existing law governing when two topics may or may not be united in one ballot title. See § 2-4-203(d), 1B C.R.S. (1980) (in construing ambiguous statutes, courts may consider the "common law or former statutory provisions, including laws upon the same or similar subjects").
This court has long held that more than one topic may be submitted to the voters in a single ballot title if the topics are "so connected with or dependent upon the general subject that it might not be desirable that one be adopted without the other." People ex rel. Elder v. Sours, 31 Colo. 369, 405, 74 P. 167, 178 (1903); see also Abts, 622 P.2d at 523 (bond issue having more than one purpose is validly set forth in a single ballot issue where "there exists a natural relationship between the various structures or objects united in one proposition so that they form but one rounded whole"); People ex rel. Moore v. Perkins, 56 Colo. 17, 40-42, 137 P. 55, 62-63 (1913) (municipal charter amendment does not combine distinct and separate questions if its provisions are naturally related and connected with one subject). More specifically, Article XI, Section 6 of the Colorado Constitution indicates that the incurrence of debt and the levy of a tax with which to repay that debt are part and parcel of the same issue:
Section 6. Local Government Debt. (1) No political subdivision of the state shall contract any general obligation debt ... except by adoption of a legislative measure which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged, specifying the purposes to which the funds to be raised shall be applied and providing for the levy of a tax which together with such other revenue, assets, or funds as may be pledged shall be sufficient to pay the interest and principal of such debt.
Colo. Const. art. XI, § 6(1) (emphasis added). As plaintiffs correctly concede, Amendment 1 did not repeal Article XI, Section 6 either expressly or by necessary implication. Accordingly, School District Question 1, City Question C and County Question A do not violate subdivision 3(a) of Amendment 1 because those ballot issues present a single subject for voter approval. See Cook v. City of Delta, 100 Colo. 7, 17, 64 P.2d 1257, 1261 (1937) (initiated amendment to city charter upheld although amendment provided for both the municipal acquisition of light and power plant and the issuance of bonds to finance that acquisition, because "[t]he manner of payment is so closely related to the manner of acquisition as to necessitate its consideration as an incident to, or a means of, making the mandate to acquire effective"); see also Routt v. Barrett, 396 Ill. 322, 71 N.E.2d 660, 666 (1947) (ballot question proposing tax levy incident to debt increase
Furthermore, even if we were to agree with plaintiffs that the ballot issues in question each involved a "consolidation" for purposes of subdivision 3(a) of Amendment 1, it cannot be said that the governmental entities impermissibly consolidated ballot issues involving "bonded debt." Rather, the consolidation, if any, in School District Question 1 and City Question C is of a "bonded debt" issue and a related tax issue.
Plaintiffs contend, however, that certain provisions of Amendment 1 implicitly support their view that seeking approval in the same ballot issue of a debt increase and a tax levy constitutes an impermissible "consolidation." For example, plaintiffs cite subdivision 3(b) of Amendment 1, which provides in relevant part:
Id. § 20(3)(b) (emphasis added). Plaintiffs also cite the following language in subdivision 3(c) of Amendment 1:
Id. § 20(3)(c) (emphasis added). According to plaintiffs, by setting forth the requirements for ballot issues involving district debt and those involving district tax increases in the disjunctive form, Amendment 1 impliedly prohibits districts from seeking both a debt increase and an increase in taxes with which to repay that debt in the same ballot issue. We disagree.
The fact that, under subdivision 3(b) of Amendment 1, districts must disclose different information in their election notices for proposed tax increases and for proposed debt increases only means that where districts link approval of the debt increase to approval of the tax increase, they must disclose in the election notice the required information as to each of those increases. The same reasoning applies to subdivision 3(c)'s
As a last resort, plaintiffs claim that their proposed interpretation, which would graft onto Amendment 1 an implied prohibition against linking approval of both a debt increase and a tax increase in the same ballot issue, should be adopted by this court because it would "reasonably restrain most the growth of government." Id. § 20(1). We are not persuaded. Plaintiffs have cited no evidence to support their claim that forcing districts to submit related debt and tax increases to the electorate in separate ballot issues would "restrain most the growth of government." The mere assertion by a party that its interpretation would "reasonably restrain most the growth of government" is not dispositive. Rather, the party seeking to invoke the "preferred interpretation" has the burden of establishing that its proposed construction of Amendment 1 would reasonably restrain the growth of government more than any other competing interpretation. To hold otherwise would create the absurd result that any individual who disagrees with the will of the majority of the electorate could undermine the results of an election governed by Amendment 1 without presenting any evidence that his or her interpretation is actually "preferred" by Amendment 1.
We conclude that the incurrence of a debt and the adoption of taxes as the means with which to repay that debt are properly viewed as a single subject when presented together in one ballot issue. This result is supported by the fact that, as the trial court correctly noted, in most cases "it might not be desirable that [the debt question] be adopted without the [tax question]." Sours, 31 Colo at 405, 74 P. at 178. Accordingly, the ballot titles for School District Question 1, City Question C and County Question A do not improperly "consolidate" ballot issues for purposes of subdivision 3(a) of Amendment 1.
We next address plaintiffs' claim that County Question A violates section 1-40-106(2), 1B C.R.S. (1993 Supp.), by presenting two separate ballot questions to the voters and thus creating an ambiguity in the meaning of a "yes" or "no" vote on this proposal. We find no merit in this contention.
Section 1-40-106(2) states that for local ballot issues, the title board (consisting of the designated election official and the governing board of the relevant political subdivision) "shall by resolution fix a proper fair title for each proposed measure substantially as provided in [section 1-40-106(3)(b) ]." Section 1-40-106(3)(b) provides in relevant part:
Plaintiffs are correct to note that the ballot title for County Question A contains two
Even a summary examination of the ballot title for County Question A reveals that the County did not violate section 1-40-106(3)(b). Both paragraphs of the ballot title for County Question A present the question as whether the County should impose a 0.25% sales and use tax, beginning January 1, 1994 and ending December 31, 2009, for the purpose of acquiring and developing open space real property,
The fact that the paragraphs are not identical does not make the ballot title ambiguous for purposes of section 1-40-106(3)(b). Rather, the relevant determination is whether the two paragraphs are sufficiently different that a voter reasonably could vote in favor of the question as presented in one paragraph and yet decide to vote against the question as presented in the other paragraph. We agree with plaintiffs that the two-tiered format employed by the County should be avoided in general because of the risk that voters might be confused as to the question presented. In this case, however, it is implausible to suggest that a voter reasonably could have considered voting in favor of one paragraph in the ballot title and against the other paragraph, where the only difference between the two paragraphs is that one paragraph is slightly more detailed than the other.
In summary, although the ballot title could have been drafted in a more concise manner,
Plaintiffs next claim that School District Question 1 and City Question C improperly
Plaintiffs cite as the basis of their claim the following language in the ballot titles for the two measures:
School District Question 1
City Question C
According to plaintiffs, the phrase "without limitation as to rate" violates subdivision 4(a) of Amendment 1, which states that districts must have voter approval in advance for "any new tax, tax rate increase [or] mill levy above that for the prior year...." Colo. Const. art. X, § 20(4)(a) (emphasis added). Plaintiffs also argue that the phrase "which authorization shall include authorization to refund such bonds and refunding bonds without additional voter approval"
Plaintiffs contend initially that by seeking approval to raise ad valorem property taxes "without limitation as to rate" in order to repay the bonds, the City and the School District impermissibly attempted to "opt out" of the prior voter approval requirement for tax increases found in subdivision 4(a) of Amendment 1. However, in approving School District Question 1 and City Question C, the electorate authorized the governmental entities to adjust the tax rates as necessary to repay the specific debt incurred pursuant to those measures.
By contrast, a more reasonable interpretation of subdivision 4(a)'s requirement of "voter approval in advance," and one which gives full effect to the language of the amendment, is that districts may seek present authorization for future tax rate increases where such rate increases may be necessary to repay a specific, voter-approved debt. See Charlton v. Kimata, 815 P.2d 946, 949 (Colo.1991) (supreme court must give effect, if possible, to every word of a statute). Of course, any rate change ultimately implemented by a district pursuant to this "without limitation as to rate" clause must be consistent with the district's stated estimate of the final fiscal year dollar amount of the tax increase. See Colo. Const. art. X, § 20(3)(c).
We also reject plaintiffs' claim that the language in City Question C authorizing the City to refund the bonds approved by that measure "without additional voter approval" violates subdivision 4(b) of Amendment 1. Once again, the question here is whether the electorate's approval of City Question C constitutes "voter approval in advance" of any future refunding of the bonds issued pursuant to that initiative. For the reasons mentioned above, we conclude that it does. Nothing in the language of Amendment 1 suggests that the voters' decision in City Question C, i.e., that the City should be allowed to refund its bonds without seeking additional voter approval, is invalid. Indeed, subdivision 4(b) expressly permits refunding of bonds without prior voter approval when such refinancing occurs at a lower interest rate. Plaintiffs ask us to speculate about the possibility that someday in the future the City will attempt to refund the bonds approved in City Question C at a higher interest rate and without prior voter approval. However, "[t]his court is not empowered to give advisory opinions based on hypothetical fact situations." Tippett v. Johnson, 742 P.2d 314, 315 (Colo.1987). If at some point the City decides to refund the bonds in the manner suggested by plaintiffs, they can seek appropriate relief at that time.
Accordingly, we conclude that the ballot titles for School District Question 1 and City Question C do not violate section 4 of Amendment 1.
We now address plaintiffs' argument that the ballot title for City Question B violates subdivision 3(c) of Amendment 1 by failing to begin with the words "SHALL CITY OF BOULDER TAXES BE INCREASED BY UP TO EIGHT MILLION DOLLARS ...?" We find no violation of Amendment 1 in this regard.
Subdivision 3(c) of Amendment 1 states that "[b]allot 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 ...?'" Colo. Const. art. X, § 20(3)(c) (emphasis added). Thus, the initial question before us is whether the ballot title for City Question B is properly viewed as a "ballot title for tax or bonded debt increases." We answer that question in the negative.
The primary purpose and effect of City Question B is to grant a franchise to Public Service to furnish gas and electricity to the City and its residents. Although the ballot title also seeks authorization for a contingent tax increase of up to $8 million annually, such an increase would only be implemented if a highly unlikely event were to occur, that is, that the City were somehow unable to collect from Public Service.
Plaintiffs also claim that the ballot title for City Question C violates subdivision 3(c) of Amendment 1 by failing to include an estimate of the "first, or if phased in, final, full fiscal year dollar increase" in the City's ad valorem property taxes which would occur if that measure were approved. We agree.
Subdivision 3(c) of Amendment 1 provides, inter alia, that
The ballot title for City Question C
City Question C thus proposes an increase in City debt of $50 million to be repaid from sales and use taxes specifically earmarked and committed for open space acquisition;
As we noted above, districts may seek approval of both a debt increase, and a tax increase with which to repay that debt, in the same ballot issue. See discussion supra at pages 229-230. In such circumstances, of course, the ballot title must include the information required by subdivision 3(c) of Amendment 1 as to both the proposed debt and the proposed tax increases. Id. In this case, however, rather than including in City Question C an estimate of the proposed "full fiscal year dollar increase" in ad valorem property taxes, as required under subdivision
The City claims initially that it was not required to provide a dollar estimate of the proposed ad valorem tax increase because City Question C would not actually cause a net increase in taxes. This argument is based on the fact that the proposed increase in ad valorem property taxes is contingent and would only occur if the sales and use tax revenues earmarked for repayment of the open space bonds were insufficient to repay the entire debt. Thus, according to the City, the increase in property taxes would only be offsetting an equal or greater reduction in sales and use taxes. We are not persuaded. The City's argument confuses a possible decrease in tax revenues with a reduction in the tax rate. The fact that a reduction in sales and use tax revenues may occur in the future due to a downturn in the local economy does not decrease the tax burden on the City's residents. Should sales and use tax revenues fail to cover the entire repayment cost of the open space bonds authorized by City Question C, the proposed increase in the ad valorem property tax "in an amount sufficient" to cover that deficit clearly would constitute a "tax increase" for purposes of subdivision 3(c).
The City claims alternatively that it should be exempted from the requirement of calculating a dollar estimate of the increase in ad valorem property taxes in City Question C because "it is impossible to guess what that number would be." We recognize that where the amount of the tax increase is dependent upon a contingent event, such as a possible shortfall in revenues generated by a separate tax, calculating the dollar amount of that increase is a complex task. However, all that is required by Amendment 1 is a good faith estimate of the dollar increase, something the City was able to provide in the ballot title for City Question B, notwithstanding the existence of a highly contingent triggering event. To create an exemption from the requirements of subdivision 3(c) any time a district has difficulties estimating its proposed tax increases would undermine the primary purpose of Amendment 1's disclosure provisions: that is, to provide the electorate with the information necessary to make an intelligent decision on ballot issues involving debt and/or tax increases. See Legislative Council of the Colorado General Assembly, An Analysis of 1992 Ballot Proposals 10 (1992) ("Election notice and information requirements will provide voters with an understanding of the need for new revenue and will result in a more informed electorate."). Accordingly, we reject the City's claim in this regard.
We must now decide whether, absent a dollar estimate of the proposed ad valorem property tax increase, the ballot title for City Question C substantially complies with Amendment 1. Looking to the factors discussed above at page 227 as relevant to substantial compliance, the second factor is dispositive because Amendment 1 directly and clearly addresses this issue. By using the phrase "in an amount sufficient to pay the principal of and interest on such bonds," the City sought approval of an open-ended tax increase.
Having determined that City Question C, as written, does not substantially comply with Amendment 1, we must decide the appropriate remedy.
There is no evidence in the record to suggest that the City intentionally or willfully violated subdivision 3(c) of Amendment 1. The City's stated reasons for failing to provide an estimate of the dollar amount of the tax increase indicate that its interpretation of City Question C (as not involving a "tax increase" at all) was based on a good faith, albeit erroneous, construction of the relevant provisions. Furthermore, "`[a]s a general rule if a statute is constitutional in one part and unconstitutional in another, the constitutional provision may be sustained and the unconstitutional stricken.'" Riverton Produce Co. v. State of Colorado, 871 P.2d 1213, 1226 (Colo.1994) (citing City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52, 70 (Colo.1981)). The only portion of City Question C which should be invalidated is its authorization for the City to increase ad valorem property taxes "in an amount sufficient to pay the principal of and interest on" the open space bonds. By contrast, the first portion of that measure, which authorizes the City to issue bonds in a principal amount not to exceed $50,000,000 (with a repayment cost of up to $150,000,000), "payable from sales and use tax revenues earmarked and committed for such purposes by vote of the City's electors and by a pledge of the full faith and credit of the City as is authorized in the Charter ..." does not violate Amendment 1. Plaintiffs have made no argument that this provision authorizing the issuance of sales and use tax revenue bonds is "inextricably intertwined" with the invalid ad valorem property tax increase. See id. Therefore, it need not be stricken from City Question C.
In summary, the language in City Question C referring to a proposed increase in ad valorem property taxes "in any year in an amount sufficient to pay the principal of and interest on such bonds and refunding bonds when due" is ineffective and must be severed from that remainder of that measure. All other provisions in City Question C, however, are valid and enforceable as adopted by the electorate.
Plaintiffs next assert that the election notices for City Questions B and C and School District Question 1 failed in several respects to comply with subdivision 3(b) of Amendment 1. We will examine the claims made against each of the election notices separately.
City Question B
The first claim made by plaintiffs against the election notice for City Question B is that the City "fiddled with its books so that its election notice ... would seem to show a reduction in spending." More specifically, plaintiffs contend that in calculating its "fiscal
Subdivision 3(b) of Amendment 1 states in relevant part:
(ii) For proposed district tax or bonded debt increases, the estimated or actual total of district fiscal year spending for the current year and each of the past four years, and the overall percentage and dollar change.
Colo. Const. art. X, § 20(3)(b)(ii) (emphasis added). The term "fiscal year spending" is defined in Amendment 1 as
Id. § 2(e) (emphasis added).
The plain language of Amendment 1 does not prohibit the calculation method employed by the City. The terms "reserve transfers or expenditures" and "reserve increases" are not defined in Amendment 1 and thus it is entirely unclear whether the City's $33 million "cash reserves" are properly viewed as a "reserve increase," a "reserve transfer" or a "reserve expenditure" for purposes of subdivision 2(e). We need not decide this issue, however, because the City clearly disclosed in its election notice, just below its fiscal year spending data, that fiscal year spending for 1992 "included the accrual of $33,947,000 in cash reserves associated with the passage of Amendment One." Therefore, plaintiffs' claim that the City's calculation of its fiscal year spending data may have misled the voters is without foundation. The data chart included in the City's election notice plainly shows that the only reason the City's fiscal year spending decreased between 1992 and 1993 is because it included those one-time "cash reserves" in its figure for 1992.
Plaintiffs also claim that the election notice for City Question B failed to comply with Amendment 1 subdivision 3(b)(ii)'s requirement that the City disclose the "overall percentage and dollar change" in its fiscal year spending over the relevant five year disclosure period (1989-1993). Although the election notice contains a chart labelled "Estimated total of district fiscal year spending for the current year and each of the past four years, and the overall percentage and dollar change," plaintiffs correctly note that the chart lacks any figures representing the overall percentage change in fiscal year spending over the five year period. However, the City's omission in this regard is not significant, because all of the information relevant to calculating the overall percentage change was provided by the City in its chart. Moreover, there is no evidence in the record to suggest that this isolated error was the product of anything other than a mere oversight by the City in preparing its election notice. Thus, on the whole, we conclude that the election notice for City Question B substantially complies with the disclosure requirements set forth in subdivision 3(b) of Amendment 1.
City Question C
Plaintiffs allege that the election notice prepared for City Question C contains four separate violations of Amendment 1.
The second issue raised by plaintiffs is that the election notice for City Question C failed to provide the "text" of the ballot issue as required by subdivision 3(b)(i) of Amendment 1. That section provides that "[t]he election date, hours, ballot title, text, and local election office address and telephone number" must be included in the election notice. Colo. Const. art. X, § 20(3)(b)(i) (emphasis added). Plaintiffs claim that in the case of City Question C, the term "text" should be construed to refer to the text of City Ordinance No. 5584.
The word "text" is not defined in Amendment 1, so it is unclear what is encompassed within the requirement to publish the "text" of a ballot issue in the election notice. Therefore, we must look to existing law for guidance on this question. See Carrara Place, 761 P.2d at 202. For example, the "ballot title" of an initiative is defined as a "brief statement that fairly and accurately represents the true intent and meaning of the proposed text of the initiative" and which must be written in the form of "a question which may be answered by `yes' or `no.'" § 1-40-102(2) & -102(8) & -102(10) (emphasis added). In a separate provision, the "draft" of an initiative is defined as "the typewritten proposed text of the initiative which, if passed, becomes the actual language of the constitution, statute, charter provision, or ordinance...." § 1-40-102(4), 1B C.R.S. (1993 Supp.) (emphasis added). Thus, the ballot title of an initiative and its "text" may in some instances contain different information, for example, where the ballot title is a condensed version of a lengthy proposed constitutional or charter amendment. See Colo. Const. art. XIX, § 2; § 31-2-210(4), 12B C.R.S. (1986). Amendment 1 recognizes this possibility by listing the "ballot title" and the "text" as separate items in subdivision 3(b)(i). However, where the ballot issue contains the entire substance of the question presented to the voters, and thus is not a summary of some lengthier "text" or "draft" of the initiative, we conclude that the district need only include the ballot title in the election notice. To hold otherwise would force districts to include in their election notices information which is unnecessarily duplicative and potentially confusing.
In this case, plaintiffs contend that the ballot title and election notice for City Question C did not contain the entire substance of that measure. They claim that the following language in Ordinance No. 5584 was omitted from the ballot title and election notice: "under Section 97 of the [City] charter... the city is presently authorized to issue up to an additional $30,976,000 of [open space] bonds ... without an election and may in the future be authorized to issue additional bonds thereunder...." (Emphasis added.) We are not persuaded. Although it is true that the ballot title for City Question C seeks voter approval to issue up to $50,000,000 in open space bonds, the ballot title also makes clear that the principal amount of such bonds is "not to exceed $50,000,000 or such lesser amount as is permitted from time to time by Section 97 of the City's Charter relating to open space bonds...." Thus, the ballot title accurately conveys the fact that the principal amount of the bonds is subject to the limits imposed by Section 97 of the City's Charter.
In summary, we conclude that as to the valid portions of City Question C, the election notice published by the City substantially complies with the requirements set forth in Amendment 1. However, the total debt repayment cost of the bonds approved in City Question C may not exceed $115,803,000 under that measure.
School District Question 1
Plaintiffs challenge the election notice for School District Question 1 on only one ground: that the School District failed to provide the "text" of that ballot issue as required by subdivision 3(b)(i) of Amendment 1. We find no merit in plaintiffs' contention.
Plaintiffs assert that the "text" of School District Question 1 is the transcript of the Board of Education of Boulder Valley School District RE-2's September 2, 1993, resolution authorizing the School District to submit that question to the electorate. According to plaintiffs, this submission resolution contains certain information which is not in the ballot title for School District Question 1 and which the School District should have included in its election notice.
The absence of the submission resolution from the election notice for School District Question 1 did not make the election notice insufficient or misleading in any way. Amendment 1 does not require districts to include in their election notices the ministerial acts, orders or directions of the governing body authorizing submission of a particular initiative to the electorate where to do so would be duplicative and potentially confusing and would not add any substantive information to the election notice which was not already disclosed in the ballot title. Because the ballot title for School District Question 1 contains the entire substance of the ballot issue presented to the voters, it cannot be said that the School District violated Amendment 1 by failing to include a transcript of the submission resolution in its election notice.
Accordingly, we reject plaintiffs' challenge to the election notice for School District Question 1.
In summary, we affirm the trial court's rulings dismissing plaintiffs' claims against the School District and the County. We also affirm the trial court's entry of summary judgment in favor of the City as to plaintiffs claims against City Question B. However, we conclude that, in part, the ballot title for City Question C does not substantially comply with the requirements set forth in subdivision 3(c) of Amendment 1. That portion of City Question C which proposes to raise ad valorem property taxes in an unspecified amount is invalid and must be severed from the remainder of that measure. Accordingly, we remand the case to the trial court for further proceedings consistent with this opinion.
(i) "a declaration that bonded debt ballot issues may not be consolidated with other ballot issues" and a "permanent injunction against such consolidation in future elections"; (ii) "a declaration that ballot titles must comply fully with [Amendment 1]" and a "permanent injunction against the use of ballot titles which do not comply"; (iii) "a declaration that election notices must comply fully with [Amendment 1]" and a "permanent injunction against the use of election notices which do not comply"; (iv) "a declaration that districts may not evade the election requirements of [Amendment 1 section] 4" and a "permanent injunction against submission of such evasions in future elections"; and (v) "a declaration that the results of this election wherein the unconstitutional and illegal ballot titles, ballot questions and requests were used are invalid and without effect."