Griff v. City of Grand Junction

262 P.3d 906

Harry GRIFF and Candi Clark, Plaintiffs–Appellants,

v.CITY OF GRAND JUNCTION, acting by and through Stephanie Tuin, Grand Junction City Clerk; Diane Schwenke; and SLB Enterprises, LLC, d/b/a Brady Trucking, Defendants–Appellees.

No. 09CA2764.

Colorado Court of Appeals, Div. IV.

Dec. 23, 2010.Rehearing Denied Jan. 27, 2011.

Griff, Larson, Laiche, Brennan & Wright, Harry Griff, Grand Junction, Colorado, for Plaintiffs–Appellants.John Shaver, City Attorney, Shelly Dackonish, Senior Staff Attorney, Grand Junction, Colorado, for Defendant–Appellee City of Grand Junction.Hoskin Farina & Kampf, P.C., Michael J. Russell, Jarrod W. Person, Grand Junction, Colorado, for Defendants–Appellees Diane Schwenke and SLB Enterprises, LLC.Opinion by Judge BOORAS.

Appellants, Harry Griff and Candi Clark, appeal the district court's order affirming the invalidation of signatures on a petition to suspend implementation of a zoning ordinance and denying an opportunity to cure those signatures. We reverse and remand.

I. Background

Appellee SLB Enterprises, LLC, d/b/a Brady Trucking, purchased property in Mesa County, Colorado, in 2006 and entered into an agreement with the City of Grand Junction to annex the property to the city. In September 2008, the city council voted to zone a portion of the property as “light industrial” and a portion as “industrial/office.”

Appellants prepared a petition to suspend the implementation of the zoning ordinance. Under Section 136 of the Grand Junction city charter, an ordinance shall be suspended if, within thirty days after the ordinance is passed, citizens submit a petition with signatures numbering at least ten percent of the city's registered electors who cast a vote for governor in the last gubernatorial election. If the petition contains the requisite number of valid signatures (in this case, 1,860), the city council must reconsider the ordinance and either repeal it or submit it to a city-wide vote.

Ms. Clark helped draft the petition, arranged for its printing with a company she owned, participated in press interviews about the petition efforts, circulated two petition sections, and signed the petition herself as an elector. As a licensed notary public, Ms. Clark notarized the petition circulators' attestations on several petition sections that other people had circulated, including a petition section that she had signed as an elector. After the petition had been submitted to the city clerk for review, she also was designated as a petition representative.

The petition was filed with the city clerk, where 1,864 signatures were certified as valid on November 10, 2008. Appellee Diane Schwenke filed a protest to the clerk's certification under section 31–11–110(1), C.R.S.2010. The clerk conducted a protest hearing and then ruled, on January 16, 2009, that section 12–55–110(2), C.R.S.2010, precluded Ms. Clark from notarizing the circulators' attestations because of her extensive personal involvement with the petition effort. However, the clerk decided that the statute required invalidation of only the petition section that Ms. Clark had signed as an elector, resulting in a reduction to only 1,846 signatures, which was insufficient to suspend the implementation of the zoning ordinance.

Although the city charter provided for a ten-day period to cure defective signatures on a petition if the city clerk did not certify a sufficient number of signatures at the outset, the city clerk opined in a letter to appellants that they did not have the same right to cure following a protest hearing. Nonetheless, ten days after the city clerk's protest ruling, appellants submitted, among other things, a new attestation and notarization for the petition section Ms. Clark had signed. The city accepted but has not reviewed these materials.

Appellants filed a complaint in district court under C.R.C.P. 106 challenging the city clerk's rulings under Rule 106(a)(4) and requesting under Rule 106(a)(2) that the district court order the city clerk to process appellants' cure documents. Ms. Schwenke also filed a complaint in district court asserting several grounds for invalidation of the petition. The district court consolidated the two cases, upheld the clerk's rulings and denied appellants' request for the city to review their updated submission, holding that appellants had no ten-day cure period after those rulings issued. The court declined to consider the issues raised in Ms. Schwenke's complaint as its ruling rendered them moot. This appeal followed.

II. Validity of Petition Signatures

Appellants first claim that the city clerk abused her discretion by rejecting Ms. Clark's notarization and invalidating the section of the petition that she both signed as an elector and notarized. They argue that the clerk misapplied Colorado's notary disqualification statute in reaching her decision. We agree.

A. Standard of Review

In a Rule 106(a)(4) appeal, we review a lower governmental or judicial body's decision directly to determine whether that body exceeded its jurisdiction or abused its discretion. C.R.C.P. 106(a)(4); Ad Two, Inc. v. City & Cnty. of Denver ex rel. Manager of Aviation, 9 P.3d 373, 376 (Colo.2000) (emphasizing that appellate court is to review administrative decision, not district court's ruling). The misapplication or misinterpretation of applicable law constitutes an abuse of discretion. Bd. of Cnty. Comm'rs v. Conder, 927 P.2d 1339, 1343 (Colo.1996); Alward v. Golder, 148 P.3d 424, 428 (Colo.App.2006). We must affirm any of the city clerk's findings of fact that are supported by some evidence in the record. Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304, 1308 (Colo.1986).

B. Colorado's Notary Disqualification Statute

The validity of Ms. Clark's notarization turns on interpretation of section 12–55–110(2), which prohibits notaries public from performing notarial acts in connection with transactions in which the notary has a disqualifying interest. One type of disqualifying interest arises when a notary is “named, individually, as a party to the transaction.” § 12–55–110(2)(b), C.R.S.2010. This phrase is not defined by statute and has yet to be interpreted by Colorado courts in any reported opinion.

When interpreting a statute, we look first at the plain meaning of the words and apply them as written if they are clear and unambiguous. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000). The primary goal of statutory interpretation is to give effect to legislative intent. In re Marriage of Davisson, 797 P.2d 809, 810 (Colo.App.1990) (citing §§ 2–4–203 and 2–4–212, C.R.S.2010). If the statutory language is ambiguous, we will consider legislative history and the potential consequences of a particular interpretation. Buckley v. Chilcutt, 968 P.2d 112, 117 (Colo.1998).

1. Plain Meaning of Notary Disqualification Statute

While the city clerk provided a well-reasoned interpretation of the phrase “party to the transaction,” she did not properly consider the significance of the words “named, individually.” This statute must be construed in a way that gives effect to every word written, not one that renders a term or terms superfluous. Slack, 5 P.3d at 284; City & Cnty. of Denver v. Taylor, 88 Colo. 89, 95, 292 P. 594, 596 (1930) (“[W]e are not to presume that the legislative body used the language idly....”).

The city clerk defined “transaction” as the “signing and representation of the petitions,” and concluded that Ms. Clark's role in the petition efforts made her a “party to the transaction” within the meaning of section 12–55–110(2)(b). The clerk reasoned that notaries can inadvertently disqualify themselves by “assum[ing] too many roles”—here, printing the petition, signing it personally, circulating certain sections, and designating herself as a petition representative. Her decision cited two cases from other states that invalidated petition sections on the basis of notaries' overall involvement with the petition effort. See Howell v. Tidwell, 258 Ga. 246, 368 S.E.2d 311 (1988); Citizens Comm. to Recall Rizzo v. Bd. of Elections, 470 Pa. 1, 367 A.2d 232 (1976).

However, section 12–55–110(2) differs in important ways from the notary disqualification statutes in Georgia and Pennsylvania. Georgia's statute, cited in Howell v. Tidwell, disqualifies notaries who have signed or are “a party to the document or transaction” to be notarized. Ga.Code Ann. § 45–17–8(c)(2) (West 2010), cited in Howell, 368 S.E.2d at 312–13. Pennsylvania's notary disqualification statute, cited in Rizzo, disqualifies a notary who is “a party directly or pecuniarily interested.” 57 Pa.Stat.Ann. § 165(e) (West 2010), cited in Rizzo, 367 A.2d at 242–43. Both statutes, and accordingly the cited cases applying them, look generally at whether the notary has become so entangled in the transaction that he or she has become a “party” to it. E.g., Rizzo, 367 A.2d at 243 (“They were advancing their own interests by ensuring the success of their efforts and the achievement of their political goals.”). The city clerk treated Colorado's statute similarly, examining Ms. Clark's overall interest in the petition.

On the contrary, the Colorado statute disqualifies those notaries who are “ named, individually, as a party to the transaction.” § 12–55–110(2)(b) (emphasis added). These words narrow the scope of disqualification to those transactions where the notary's interest is apparent from being named on the face of the document to be notarized.

Courts have maintained that being “named” requires some definitive identification. E.g., Lackey v. McDowell, 262 Ga. 185, 415 S.E.2d 902, 903 n. 3 (1992) (“By ‘named’ we mean being identified either by proper name or such other description as leaves no question of the identity of the party....”); Waterwatch of Ore., Inc. v. Boeing Agri–Industrial Co., 155 Or.App. 381, 963 P.2d 744, 746 (1998) (emphasizing that for a party to be “named” requires an affirmative act,...