Hoper v. City and County of Denver ( 1971 )

Mr. Justice Lee

concurs in part and dissents in part:

I concur in part I of the opinion of the Court which affirms the ruling of the trial court interpreting § 6 of article XX of the Colorado constitution as permitting charter provisions for partisan or nonpartisan municipal elections in home rule cities and towns.

I respectfully dissent from part II of the opinion of the Court which affirms the judgment of the trial court holding that the ballot title of the referred charter amendment was defective, thereby invalidating the submission of the charter amendment to the people.

I simply disagree that the ballot title in this instance did not sufficiently set forth the “nature” of the charter amendment to be voted upon. “Nature” means “kind,” “order” or “general character.” Merriam-Webster New International Dictionary (Third Edition), p. 1508. Here, the submission clearly and completely advised the voter that the proposed amendment would repeal designated charter sections and enact new charter sections “concerning municipal elections and officersIt is readily understandable that the proposed amendment was one to revise the election laws of the City and County of Denver.

The charter provision, section 0.19, with respect to the required content of a submission clause — ballot title — does not require, as was assumed by the trial court and the majority of this Court, that the effect of the proposed amendment must be indicated in the ballot title. Such is read into the law, I believe, unjustifiably and unnecessarily, in view of the charter requirements concerning notice and publication of proposed ordinances, and also the constitutional provisions concerning notice and publication of proposed charter amendments (§5 of article XX, Colorado constitution). All of these procedural requirements' were scrupulously followed in the proceedings under question. As indicated by the agreed statement of facts, the submission ordinance, which contained the full text of the proposed charter amendment, was published two times; and the charter amendment was again published in full three times prior to the charter election, all five publications being in newspapers of general circulation. In addition, public hearings were held before the city council. Also, public discussion (though not legally required) of the proposed amendment was held in the newspapers and on radio and television. Moreover, sample ballots were provided the voters showing the submission clauses of four separate charter amendments to be voted upon at the election in question; and each of these concerned distinct subject matters set forth in boldface type entitled “POLICE DEPARTMENT AMENDMENT NO. 1,” “FIRE DEPARTMENT AMENDMENT NO. 2,” “COUNCIL-MANIC DISTRICT AMENDMENT NO. 3,” and “MUNICIPAL ELECTIONS AMENDMENT NO. 4.”

It is my opinion that the tests of Denver v. Mewborn, 143 Colo. 407, 354 P.2d 155, as set forth in the majority opinion, were satisfied. I believe it unrealistic that 77,471 voters, 48,293 of whom voted in favor of and 29,178 of whom voted against the proposed amendment, were in any way confused, mislead or deceived by the wording of the ballot title. To hold, as a matter of law, that the title was so insufficient that it tended to confuse, mislead or deceive, in the absence of any factual support whatsoever in the record, is unadvised under the circumstances of this case. Accordingly, I consider the result to be an unwarranted interference by the judiciary with the political processes of the City and County of Denver.