Campbell v. Buckley, CIV. A. 98-K-1022.

11 F.Supp.2d 1260

Douglas CAMPBELL, Richard Hamilton, Clyde Harkins, Jack Hawkins, Daniel Hayes, Gary Swing, Jeffrey Wright, Douglas Bruce, the Initiative and Referendum Institute, Americans for Sound Public Policy, and the American Constitutional Law Foundation, Inc., Plaintiffs, v. Victoria BUCKLEY, in her official capacity as Secretary of State for the State of Colorado and member of the Colorado State Initiative and Referendum Title Board, Colorado State Initiative and Referendum Title Board, and Richard Westfall and Rebecca Lennahan in their official capacities as Title Board members, Defendants.

No. CIV. A. 98-K-1022.

United States District Court, D. Colorado.

August 4, 1998.

Paul Kenneth Grant, Parker, CO, for Plaintiffs.

Maurice G. Knaizer, Deputy Attorney General, Denver, CO, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KANE, Senior District Judge.

Plaintiffs are individual activists and proponents of past and present Colorado ballot initiatives and nonprofit public interest groups dedicated to the promotion and protection of citizen initiative processes. Together they filed this 42 U.S.C. § 1983 action challenging the constitutionality of Colorado's petition laws, and seeking declaratory and injunctive relief. Specifically, Plaintiffs challenge § 1(5.5) of article V of the Colorado Constitution, which proscribes the circulation of any proposed ballot initiative for which no single-subject can be clearly expressed in its title, and the statutory title-setting process implementing it. Plaintiffs argue the proscription allows not only the State to dictate the content of proposed ballot initiatives, but political opponents to thwart their circulation entirely through the initiation of repeated single-subject challenges, both of which violate their "associational [rights], right to petition for redress of grievance[s], due process rights, free speech rights and voting rights under the First and Fourteenth Amendments." (Pls.' Compl. at ¶ 37.)

Plaintiffs also argue that the title-setting process violates the Equal Protection Clause of the Fourteenth Amendment because it subjects only citizen-based initiatives to single-subject challenges before inclusion on the ballot, while legislatively referred measures proceed directly to the ballot without such scrutiny.

In May 1998, I consolidated Plaintiffs' request for preliminary injunctive relief with their request for permanent injunctive and declaratory relief and set a June 22 trial date. The two-day trial to the court concluded on June 23, 1998. Under the "flexible" standard of scrutiny applicable to petition law challenges pursuant to American Constitutional Law Found. v. Meyer, 120 F.3d 1092, 1098 (10th Cir.1997), I deny both claims for relief. The evidence and arguments presented failed to demonstrate that the burdens imposed by the single-subject scheme are of a character or magnitude sufficient to trigger exacting review. I find Colorado's regulatory interests in preventing voter fraud and ensuring a modicum of support for measures placed on its ballot justify the reasonable and nondiscriminatory burdens the scheme imposes on Plaintiffs' rights of political expression and association and reject Plaintiffs' first amendment claim. I also find that a rational basis exists for the disparate treatment of measures initiated by citizens and those referred by the General Assembly, and reject Plaintiffs' equal protection claim as well.

The following constitute my findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52(a):

I. STANDARD FOR INJUNCTIVE RELIEF.

The standard for determining whether a permanent injunction should issue is the same as that for preliminary relief, except that the court determines plaintiff's actual success on the merits rather than his likelihood of success. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (citation omitted). In this circuit, Plaintiffs must establish not only that Colorado's ballot initiative procedures are unconstitutional as alleged, but also that (1) they will suffer irreparable injury unless the injunction issues; (2) the threatened injury to them outweighs whatever harm the proposed injunction may cause the opposing party; and (3) the injunction, if issued, would not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980)(preliminary injunction standard).

II. STANDING.

I pause briefly to address the issue of standing. Plaintiffs American Constitutional Law Foundation, Inc. (ACLF), Initiative and Referendum Institute (IRI) and Americans for Sound Public Policy (ASPP) are nonprofit organizations that support direct democracy and seek through lawsuits and other means to promote and "protect" citizen initiative and referendum processes throughout the United States. The Defendants urge dismissal of these Plaintiffs for lack of standing, claiming the ACLF was dissolved by operation of law effective January 1, 1998,¹ and therefore lacks the legal capacity to sue, and that the interests of the remaining institutional Plaintiffs in the matters at issue are insufficient to confer standing.

In response Plaintiffs offered only vague assertions that the institutional Plaintiffs have "members and supporters in Colorado" and "intend to support future initiatives in Colorado." (Pls.' Am. Compl. at ¶¶ 12-14.) There is no allegation that the ACLF, IRI, ASPP or any of their individual members have been injured by Colorado's single-subject scheme or that they have even been involved in the particular initiatives at issue here. On this record, there is nothing from which the standing of ACLF, IRI or ASPP can be inferred or deduced. I conclude the institutional Plaintiffs lack standing to challenge Colorado's constitutional single-subject requirement or the title-setting process implementing it, and grant Defendants' motion to dismiss them from the case. My remaining findings and conclusions are directed to the individual Plaintiffs only.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW.

A. Background.

Colorado law allows its citizens to place issues on the ballot by petition. Colo. Const. art. V, § 1(1). The right is not unlimited, however, as the state constitution also grants the General Assembly wide authority to adopt legislation "designed to prevent fraud mistake, or other abuses" in the process. Committee for Better Health Care v. Meyer, 830 P.2d 884, 893 (Colo.1992) (en banc)(citing Colo. Const. art. V, § 1(2)(petitions shall be filed "in such form as may be prescribed pursuant to law") and art. VII, § 11 (granting general authority to regulate elections and citizens' right to elective franchise)).

Pursuant to this authority, the General Assembly has provided for a three-stage process for gaining access to the ballot. Colo. Rev.Stat. Ann. §§ 1-40-101 et seq. (Bradford 1997). First, proponents must submit a draft of the proposed measure petition to state legal and legislative offices for review and comment. Id., § 1-40-105. Following a public hearing, the draft proceeds to the title board for preparation of a title, submission clause and summary. § 1-40-106, 107. The final stage includes the circulation process, a six-month period in which proponents must obtain a requisite number of qualified signatures and file the petition with the Secretary of State. Id., §§ 1-40-108, 109. Petitions certified as having the requisite number of qualified signatures are included on the ballot in the next general election. § 1-40-122. The second stage of this process is at issue here.

Section 1(5.5), article V, of the Colorado Constitution provides that "[n]o measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title." Colo. Const. art. V, § 1(5.5). If a measure contains "more than one subject such that no single subject can be clearly expressed in its title, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls" pending revision and resubmission. Id. Section 1(5.5) was referred by the General Assembly to the people of Colorado for their approval in 1994. See Colo.Rev.Stat. Ann. § 1-40-106.5. Its language was drawn from § 21 of the same article V, which subjects every bill prepared by the General Assembly, other than general appropriation bills, to the same limitation. Id.

To implement § 1(5.5), the General Assembly provided for the establishment of a title board charged with determining compliance with the single-subject requirement, summarizing the proposed amendment, setting the title, and drafting a submission clause. Colo.Rev.Stat. Ann. § 1-40-106. In setting a title, the board must consider the public confusion that might be caused by misleading titles "and shall, whenever practicable, avoid titles for which the general understanding of the effect of a `yes' or `no' vote will be unclear." § 1-40-106(b). The board's actions are subject to rehearing and expedited appeal to the Colorado Supreme Court. Id., § 1-40-107. In any event, no petition for any initiative measure may be circulated before the title, submission clause and summary have been determined and fixed in accordance with these provisions.

B. Success on the Merits.

1. First Amendment Claim.

a. Level of Scrutiny.

Plaintiffs assert § 1(5.5) and the statutory title-setting procedures implementing it are subject to exacting scrutiny because they infringe on Plaintiffs' first amendment rights under the United States Constitution to petition for redress of grievances and to speak and associate freely for political ends.

Colorado's petition process has been the subject of several first amendment challenges in recent years and the law governing it is well established. The United States Supreme Court reviewed the process in Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), invalidating a Colorado petition statute...