Buckley v. Chilcutt

Justice MARTINEZ

dissenting:

I respectfully dissent. The undisputed facts of this case establish that the Secretary of State failed to properly verify the sufficiency of the petition’s signatures within thirty days of the petition’s filing. The majority allows the Secretary a second opportunity to verify the sufficiency of the petition via a line-by-line examination. See maj. op. at 121. In my view, the appropriate remedy is that set forth by section 1-40-118(1), 1 C.R.S. (1998). Construing this section liberally so as to facilitate the fundamental right of initiative, I find that the petition is deemed sufficient where the Secretary fails to properly verify the petition’s signatures within the requisite thirty days. Accordingly, I would affirm the judgment of the trial court.

I.

The majority sets forth an accurate presentation of the undisputed facts of this case. See maj. op. at 114-115. I will recite them only briefly here. The proponents of this initiative timely filed their petition on July 7, 1998. The Secretary conducted a random sampling of the petition’s signatures and found that the petition contained only 47,960 valid signatures, less than ninety percent of the total required. The Secretary therefore did not examine each signature of the petition. The Secretary issued a statement that the petition lacked sufficient valid signatures on August 6, 1998.

On September 4,1998, the proponents filed a timely protest to the Secretary’s findings. At a hearing in the trial court, the proponents demonstrated, and the Secretary admitted, that the Secretary’s random sampling was flawed. In fact, a proper random sampling showed that well over 90% of the petition’s signatures were valid. The Secretary asserted that she should be allowed to reexamine the petition. The trial court concluded that the Secretary had no authority to reexamine the signatures at that point because more than thirty days had passed since the petition’s filing. Thus, the trial court ordered the Secretary to certify the initiative *123for the ballot in order to preserve the proponents’ fundamental right of initiative.

II.

Under the Colorado Constitution, the political power of this state is vested in the people. See Colo. Const. art. II, § 1; Clark v. City of Aurora, 782 P.2d 771, 772 (Colo.1989). In Article V, Sections 1 and 2 of the constitution, the people reserved to themselves the fundamental right of initiative “independent of the general assembly.” See City of Glendale v. Buchanan, 195 Colo. 267, 272, 578 P.2d 221, 224 (1978). One purpose of the initiative power is to guarantee the people’s participation in the political process. See Loonan v. Woodley, 882 P.2d 1380, 1383 (Colo.1994). The initiative power is therefore a direct cheek on the exercise or non-exercise of legislative power by elected officials. See Margolis v. District Court, 638 P.2d 297, 302 (Colo.1981).

Because the right of initiative is fundamental in character and self-executing, see Colo. Const. art. V, § 1(10), the right must be liberally construed so as to effectuate its purpose and facilitate its operation. See Fabec v. Beck, 922 P.2d 330, 341 (Colo.1996); Loonan, 882 P.2d at 1383-84; Committee for Better Health Care for All Colo. Citizens v. Meyer, 830 P.2d 884, 893 (Colo.1992). Thus, legislation governing the initiative power must be liberally construed in favor of the right of the people to exercise that power. See, e.g., Fabec, 922 P.2d at 341; Loonan, 882 P.2d at 1383-84. Conversely, legislation tending to restrict the right of initiative must be strictly construed. See Fabec, 922 P.2d at 341; Loonan, 882 P.2d at 1383-84; Committee for Better Health Care for All Colo. Citizens, 830 P.2d at 893; Margolis, 638 P.2d at 302; see also Buchanan, 195 Colo, at 272, 578 P.2d at 224 (“Acts of the legislature which affect the exercise of the initiative must further the purpose of the right or facilitate its operation.”); Common Cause v. Anderson, 178 Colo. 1, 5, 495 P.2d 220, 221 (1972) (“[0]nly legislation which will further the purpose of the constitutional provision or facilitate its operationf ] is permitted.”).

With these principles in mind, I turn to the statutes affecting the right of initiative in this case, Section 1-40-116, 1 C.R.S. (1998), directs the Secretary to verify the sufficiency of the signatures to each submitted petition. Prior to 1993, the verification process required the Secretary to conduct a line-by-line examination of each petition within twenty-one days of the petition’s filing. See § 1-40-109, IB C.R.S. (1992 Supp.). In 1993, the General Assembly amended the law to allow random sampling as the first step in the verification process and to extend the verification deadline to thirty days. See ch. 183, sec. 1, § 1-40-116, 1993 Colo. Sess. Laws 676, 686-88. Thus, section 1-40-116(4) provides that the Secretary should first conduct a random sampling of the signatures. If the sampling establishes that ninety percent or less of the signatures are valid, the petition is deemed to be not sufficient. See § 1-40-116(4). If the sampling establishes that more than ninety percent, but less than one hundred ten percent, of the signatures are valid, the secretary must examine each signature in order to verify whether a sufficient number of valid signatures have been submitted. See id. Finally, if the random sampling shows that one hundred ten percent or more of the signatures are valid, the petition is deemed sufficient. See id.

Section 1-40-117, 1 C.R.S. (1998), directs the Secretary, after examining the petition, to announce the results of the verification process. Among other things, the Secretary must issue a statement as to whether a sufficient number of valid signatures have been submitted. See § 1-40-117(1). Section 1-40-118, 1 C.R.S. (1998), sets forth the deadline for the Secretary’s public announcement of the results of the verification process. The Secretary must issue a statement as to whether a sufficient number of valid signatures have been submitted no later than thirty days after the petition has been filed. If the Secretary fails to do so, the petition is deemed sufficient. See § 1^40-118(1).

Section 1 — 40—118 also contains the procedures for protesting the Secretary’s findings as to the sufficiency of a petition. Such a protest must be filed within thirty days after the Secretary issues the statement regarding the sufficiency of the petition. See § 1-40-118(1). Section 1^40-118(2) sets forth differ*124ent requirements for the protest depending upon whether the Secretary verified each signature of the petition or conducted a random sampling only.

In analyzing the above provisions, the majority concludes that the statutes are inconclusive as to the remedy available to the petition’s proponents under the circumstances of this case. See maj. op. at 116. It is true that the statutes do not explicitly address the scenario in which the Secretary issues an erroneous statement as to the number of valid signatures submitted. However, the statutes do provide that, where the Secretary fails to issue a statement as to the number of valid signatures submitted, the petition is deemed sufficient. See § 1^0-118(1). Because we are bound to liberally construe a statute affecting the right of initiative in order to facilitate the exercise of this fundamental right, I find the remedy prescribed by section 1-40-118(1) applicable to this case. Where the right of initiative is implicated, the Secretary’s erroneous statement as to the petition’s sufficiency is equivalent to no statement at all. Because the Secretary’s statement of sufficiency was erroneous, it was, in effect, a failure to issue a statement of sufficiency. Thus, pursuant to section 1-40-118(1), the petition in this case should be deemed sufficient.

In my view, the majority has adopted a construction which restricts the right of initiative. Instead of directing the petition to be certified to the ballot, the majority permits the Secretary to conduct a line-by-line analysis of the petition outside of the thirty-day timeframe specified by section 1-40-118(1). Because the Secretary is no longer required to conclude the analysis within thirty days of the petition’s filing (as prescribed by section 1-40-118(1)), the Secretary is granted an indefinite period in which to examine the petition. Thus, by filing an erroneous statement as to the sufficiency of the petition’s signatures, the Secretary gains an extra-statutory and open-ended extension of time. Affording such broad discretion to the Secretary is not consistent with our recognition that “legislation tending to restrict [the right of initiative] must be strictly construed.” Committee for Better Health Care for All Colo. Citizens, 830 P.2d at 893 (emphasis added).

The majority suggests that its remedy for the Secretary’s good faith error simply requires the count which would have occurred had there been no error. See maj. op. at 120. The General Assembly, however, has already provided a remedy for such an error. Section 1-40-118(1) provides that, when the Secretary fails to issue a statement as to a petition’s sufficiency within thirty days, this error redounds to the benefit of the petition’s proponents. This response comports with the General Assembly’s duty to implement acts that facilitate, rather than hinder, the exercise of the fundamental right of initiative.

The majority explains that allowing a petition to be certified to the ballot absent conclusive evidence that the petition has the constitutionally mandated number of signatures creates a risk that some petitions may reach the ballot which should not. See maj. op. at 121. This is true. Of course, the same charge can be levied against the certification of a petition where the Secretary has failed to issue a timely statement as to whether the petition has a sufficient number of valid signatures. Yet, the General Assembly has codified this process in section 1 — 40—118(1). The General Assembly has balanced the dangers of this process against the benefits of facilitating the fundamental right of the initiative, and has concluded that the latter concern should prevail. Because the certification of a petition that has been erroneously examined by the Secretary presents no greater risks than the certification of a petition that has not been examined by the Secretary at all, I believe that the balance struck by the General Assembly in section 1^10-118(1) is applicable to this case.

The majority asserts that, “[g]iven the statutory time frame,” applying the remedy provided in 1-40-118(1) to the circumstances of this case would result in the certification of a petition to the ballot whenever it is proven that the Secretary failed to conduct a proper random sampling. Maj. op. at 118. The majority deems this an “absurd” result. Id. at 118. Without commenting upon the accuracy of the majority’s prediction, I dis*125agree with the majority’s characterization of this result. As explained above, certifying a petition that the Secretary has erroneously examined is functionally equivalent to certifying a petition that the Secretary has failed to examine. Thus, the result advocated by the proponents in this case is no more “absurd” than the result codified by the General Assembly in section 1 — 40—llS(l).1

Furthermore, I find it difficult to reconcile the majority’s view of the verification process with the relevant statutes. The majority concludes that “[tjhere is no requirement that the Secretary both complete the random sample and conduct a line-by-line review within thirty days.” Maj. op. at 118. Section 1-40-118(1) requires the Secretary to issue a statement as to whether the petition has a sufficient number of valid signatures within thirty days of the petition’s filing. It seems sensible the Secretary is not expected to issue this statement until after the verification process is complete. Otherwise, the statement is mere guesswork. Section 1-40-116(4) makes clear that a line-by-line review is an integral part of the verification process where the random sampling shows that more than ninety percent but less than one hundred ten percent of the signatures are valid. Thus, sections 1-40-117 and 1-40-118 contemplate that, in some cases, the line-by-line review must precede the Secretary’s statement as to the petition’s sufficiency. See § 1-40-117(2) (illustrating that a random sample ends the verification process in only some cases); § 1-40-118(2) (setting forth separate protest requirements where a line-by-line analysis has occurred).

Consequently, the relevant statutes envision that, where a line-by-line analysis is required, the Secretary will complete both the random sample and the line-by-line analysis within the requisite thirty days.2 As the Secretary concedes, the results of a proper random sampling of this petition’s signatures demonstrate that a line-by-line analysis was required in this case. According to statute, this analysis should have occurred within thirty days of the petition’s filing. The Secretary’s failure to conduct a proper random sampling should not excuse this requirement.3

The majority asserts that its holding is necessary to guard against “unfortunate incentives within the initiative process.” Maj. op. at 121. These incentives include the temptation by those initiative proponents without a “sufficient margin for the total signatures to meet the constitutional requirement” to file their petitions “at the last possible date and then challenge a finding of insufficiency on the last possible day” to prevent the Secretary from correcting any error. Maj. op. at 121. It is impossible to know whether this scheme is actually tempting to initiative proponents, and the majority recognizes that there is no suggestion that the proponents in this case had such motives. See maj. op. at 121 n. 3. This scheme is unlikely to be attractive to those proponents who believe that their petitions have a “sufficient margin” of signatures because they could expect the Secretary to easily certify their petitions. Those less fortunate proponents with fewer signatures, in order to invoke this plan, must be able to predict that (1) they have more than ninety percent but *126less, than one hundred ten percent of total number of required valid signatures, (2) the Secretary will initially conduct a flawed random sampling and decline to do a line-by-line analysis, and (3) the proponents will be able to expose this error and show that they have submitted more than ninety percent of the required signatures. Reliance on such predictions would seem to be a risky gamble indeed.

More importantly, the majority’s decision to allow the Secretary an indefinite extension of time to examine the petition whenever the Secretary issues an erroneous statement as to whether the petition has a sufficient number of valid signatures creates other unfortunate consequences. If the Secretary fails completely to issue a count of the signatures within the thirty-day deadline, the petition is deemed sufficient by statute. Thus, when faced with an impending deadline and with the knowledge that the consequence of an erroneous count is simply the opportunity to recount, it may be tempting to follow less exacting verification standards in order to present a count on time. Even assuming, which I do, that the Secretary will act with diligence and good faith, one cannot deny that the accuracy of the initial count may suffer when the law no longer penalizes inaccuracy.

In light of the above discussion, I do not join the majority’s holding. I find that section 1-40-118(1) deems the petition sufficient under the circumstances of this case.

III.

I construe the statutes to preserve and facilitate the proponents’ fundamental right of initiative. Under this construction, the proponents’ petition should be deemed sufficient under section 1-40-118(1). Accordingly, I would affirm the judgment of the trial court.

Justice KOURLIS joins in this dissent.

. In order to illustrate the potential problems with the proponents’ position in this case, the majority hypothesizes a scenario in which the proponents’ view would lead to seemingly inequitable results for a petition's opponents. See maj. op. at 118-119. Of course, contrary hypothetical situations could be imagined which more dramatically demonstrate that the majority's view of the statutes leads to unfair results for a petition's proponents. I do not find it instructive to speculate on the resolution of hypothetical cases not before us; rather, our analysis should be confined to the facts of this case.

. Regardless of whether this requirement imposes a "heavy burden on the Secretary,” maj. op. at 118, enacting this requirement is within the province of the General Assembly and is consistent with its duty to promulgate laws which facilitate the fundamental right of initiative.

.To deem the petition sufficient where the Secretary has failed to conduct a proper random sampling within the requisite thirty days is not to "effectively eliminate the use of random sampling." Maj. op. at 118. On the contrary, this view of this statute leaves proper random samplings undisturbed and fully effective, but declines to permit a flawed random sampling to compromise the fundamental right of initiative.