HomeMy WebLinkAbout2017CV219 - ERIC SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 019 - CITY'S CORRECTED BRIEF IN OPPOSITION TO PLAINTIFF'S CONTEST TO FORM AND CONTENT OF BALLOT QUESTION1
DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiff: ERIC SUTHERLAND,
v.
Defendant: THE CITY OF FORT COLLINS
Indispensable Party: Angela Myer, Larimer County
Clerk and Recorder
COURT USE ONLY
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 221-6520
Email: jduval@fcgov.com
Kimberly B. Schutt, #25947
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011
Email: kschutt@wicklaw.com
Case Number: 2017 CV 219
Courtroom: 5C
CITY’S CORRECTED BRIEF IN OPPOSITION TO PLAINTIFF’S
CONTEST TO FORM AND CONTENT OF BALLOT QUESTION
PROPOSING AMENDMENT TO CHARTER PERTAINING TO
TELECOMMUNICATION FACILITIES AND SERVICES
COMES NOW, the Defendant City of Fort Collins (“City”), by and through its counsel,
the Fort Collins City Attorney’s Office and Wick & Trautwein, LLC, and in response to the
“Petition for a Contest Concerning the Form and Content of the City of Fort Collins Broadband
Authorization Election Ballot Question” (“Petition”) filed by the Plaintiff Eric Sutherland
(“Plaintiff”) in this action, states as follows:
I. INTRODUCTION
The Plaintiff has filed his Petition under C.R.S. § 1-11-203.5 to contest the form and
content of a ballot question that the Fort Collins City Council (the “Council”) submitted to the
2
City’s electorate by its adoption of Ordinance No. 101, 2017 on August 15, 2017, a copy of
which is attached as Exhibit “A” (the “Ballot Ordinance”).1 The Ballot Ordinance submits this
ballot measure to the City’s electorate at an upcoming special election on November 7, 2017,
which election the Council called in Ordinance No. 096, 2017 on August 15, 2017, a copy of
which is attached as Exhibit “C” (the “Election Ordinance”). As provided in the Election
Ordinance, the City’s November 7th election is being conducted as a coordinated election with
the Larimer County Clerk and Recorder as authorized in the Colorado Uniform Election Code of
1992 ( the “UEC”).2
The Council is clear in the Ballot Ordinance that it is submitting to the electorate a
proposed amendment to the Home Rule Charter of the City of Fort Collins, Colorado (the
“Charter”) 3 to add a new Section 7 to Charter Article XII. If approved by voters, Section 7 will
grant to the Council the power and authority to provide telecommunication facilities and
services, including high-speed broadband Internet services, to customers both within and outside
of the City through the City’s existing electric utility or through a new telecommunications
utility. Section 7 also provides significant detail on how the Council might exercise this new
power and authority if it chooses to do so in the future. This amendment, if approved by the
voters, is not the exercise of this new power or authority, but rather the grant of it.
The process for amending the Charter is addressed in Section 8 of Charter Article IV,
which provides that the Charter “may be amended at any time in the manner provided by the
1 City Code Section 7-156 provides that challenges to the form or content of a ballot title or submission clause fixed
by Council for an initiated or referred ballot measure are to be brought under C.R.S. § 1-11-203.5 and that this is the
exclusive manner for such legal challenges. Attached as Exhibit “B” is copy of Code Section 7-156.
2 Articles 1 to 13 of Title 1 of the Colorado Revised Statutes.
3 Attached as Exhibit “D” is a complete copy of the Charter with amendments current through April 4, 2017.
3
laws of the State of Colorado.” Section 9 of Article XX of the Colorado Constitution states that
the “general assembly shall provide by statute procedures under which the registered electors of
any . . . existing . . . city . . . may . . . amend . . . a municipal home rule charter.” The General
Assembly adopted these charter amendment procedures in the Colorado Municipal Home Rule
Act of 1971 (the “Home Rule Act”).4
The specific procedure for amending a home rule charter under the Home Rule Act, as
applicable here, is found in C.R.S. § 31-2-210(1)(b), which provides that the Council can adopt
an ordinance “submitting the proposed amendment to a vote of the registered electors . . . [and]
[s]uch ordinance shall also adopt a ballot title for the proposed amendment” (emphasis added).
A “ballot title” is defined in the Home Rule Act as having the same meaning as is given to it in
C.R.S. § 31-11-103(1).5
Section 31-11-103(1) defines “ballot title” to mean “the language printed on the ballot
that is comprised of the submission clause and the title” (emphasis added). “Submission clause”
is defined in Section 31-11-103(4) to mean “the language that is attached to the title to form a
question that can be answered by ‘yes’ or ‘no’.” “Title” is defined in Section 31-11-103(5) to
mean “a brief statement that fairly and accurately represents the true intent and meaning of the
proposed initiative, referendum, or referred measure.”
The Petition contests only the form of the submission clause of the following ballot title
submitted to the electors in the Ballot Ordinance:
CITY-INITIATED
PROPOSED CHARTER AMENDMENT NO. 1 ADDING A NEW SECTION 7 TO
CHARTER ARTCLE XII TO AUTHORIZE, BUT NOT REQUIRE, THE CITY’S
PROVISION OF TELECOMMUNICATION FACILITIES AND SERVICES AS A
PUBLIC UTILITY, INCLUDING BROADBAND INTERNET SERVICES
4 C.R.S. §§ 31-2-201, et seq.
5 C.R.S. § 31-2-203(1).
4
Shall Article XII of the City of Fort Collins Charter be amended to allow, but not
require, City Council to authorize, by ordinance and without a vote of the electors,
the City’s electric utility or a separate telecommunications utility to provide
telecommunication facilities and services, including the transmission of voice, data,
graphics and video using broadband Internet facilities, to customers within and
outside Fort Collins, whether directly or in whole or part through one or more third-
party providers, and in exercising this authority, to: (1) issue securities and other
debt, but in a total amount not to exceed $150,000,000; (2) set the customer charges
for these facilities and services subject to the limitations in the Charter required for
setting the customer charges of other City utilities; (3) go into executive session to
consider matters pertaining to issues of competition in providing these facilities and
services; (4) establish and delegate to a Council-appointed board or commission
some or all of the Council’s governing authority and powers granted in this Charter
amendment, but not the power to issue securities and other debt; and (5) delegate to
the City Manager some or all of Council’s authority to set customer charges for
telecommunication facilities and services?
________Yes/For
________No/Against
The Plaintiff proposes two alternatives to this submission clause. First, “no ballot question at
all.”6 Or, rewrite the submission clause as here redlined (the highlighted provisions are
explained in Section II below):7
Shall City of Fort Collins Debt be increased by $150,000,000, with a repayment
cost of $200,000,000, by the adoption of an amendment to Article XII of the City of
Fort Collins Charter that shall allow, but not require, City Council to authorize, by
ordinance and without a vote of the electors, the City’s electric utility or a separate
telecommunications utility to provide telecommunication facilities and services,
including the transmission of voice, data, graphics and video using broadband
Internet facilities, to customers within and outside Fort Collins, whether directly or
in whole or part through one or more third-party providers, and, in exercising this
authority, shall allow City Council to: (1) issue securities and other debt, but in a
total amount not to exceed $150,000,000 repayable with revenue from any source
including sales and use tax but not with property tax without appropriation by City
Council; (2) set the customer charges for these facilities and services subject to the
limitations in the Charter required for setting the customer charges of other City
utilities; (3) go into executive session to consider matters pertaining to issues of
competition in providing these facilities and services; (4) establish and delegate to a
Council-appointed board or commission some or all of the Council’s governing
authority and powers granted in this Charter amendment, but not the power to issue
securities and other debt; and (5) delegate to the City Manager some or all of
6 Petition ¶ 38.
7 Petition ¶ 39.
5
Council’s authority to set customer charges for telecommunication facilities and
services?
________Yes/For
______No/Against
For the reasons hereafter discussed, the City urges the Court not to order either of these
alternatives, but instead find that the form and content of the submission clause set by Council in
the Ballot Ordinance conforms to all applicable legal requirements.
II. SUMMARY OF PLAINTIFF’S GROUNDS FOR CONTEST
The Plaintiff asserts in his Petition the following five “Grounds for the Contest”:
1. A comma should be added to the submission clause.8 (This added comma is
highlighted in green above in the Plaintiff’s proposed submission clause.)
2. The submission clause fails to state that any “securities and other debt” issued to fund
the telecommunication facilities and services could be repaid with sales and use tax.9
(The language the Plaintiff has added to the submission clause above addressing this
ground is highlighted in light blue.)
3. The submission clause fails to state that the last sentence of Section 7(b) in the
proposed Charter amendment is in conflict with existing provisions in subsections (b)
and (c) of Section 8 in Charter Article V relating to appropriations.10 (The language
added by Plaintiff to address this ground is highlighted above in gray.)
4. The submission clause fails to conform to the requirement in Article X, Section
20(3)(c) of the Colorado Constitution, the Taxpayer’s Bill of Rights (“TABOR”), that
ballot titles for “bonded debt increases” begin with “SHALL (DISTRICT) DEBT BE
INCREASED (principal amount), WITH A REPAYMENT COST OF (maximum
total district cost).”11 (Plaintiff’s added language to address this ground is highlighted
above in yellow.)
5. The submission clause violates the TABOR’s “anti-consolidation clause” found in
Article X, Section 20(3)(a).12 (The Plaintiff has not proposed any added language to
the submission clause for this ground.)
8 Petition ¶¶ 17-20.
9 Petition ¶¶ 21-24.
10 Petition ¶¶ 25-28.
11 Petition ¶¶ 29-33.
12 Petition ¶¶ 34-36.
6
The Plaintiff does not explain in his Petition why he added to the submission clause the rest of
the redlined language that is not highlighted above. It appears it was probably added by the
Plaintiff to make the submission clause more readable in light of the Plaintiff’s highlighted
changes.
After discussing the standard of review the Court is to apply in this contest under Section
1-11-203.5, each of these five grounds will be addressed in turn.
III. STANDARD OF REVIEW
Section 1-11-203.5, found in the UEC, does not set a specific legal standard by which this
Court is to review the ballot title for this ballot question, except that the Court is to generally
determine whether the form and content of the ballot title conforms “to the requirements of the
state constitution and statutes.”13 Therefore, the Court is to look to the Colorado’s Constitution
and its statutes for the specific controlling legal standard of review.
As a home rule municipality, the City derives its power to conduct its municipal elections
from Article XX, Section 6.d., which provides that home rule municipalities:
“ . . . shall have the powers set out in sections 1, 4 and 5 of this article, and all other
powers necessary, requisite or proper for the government and administration of its
local and municipal matters, including power to legislate upon, provide, regulate,
conduct and control:
d. All matters pertaining to municipal elections in such city or town, and to
electoral votes therein on measures submitted under the charter or ordinances
thereof, including the calling or notice and the date of such election or vote, the
registration of voters, nominations, nomination and election systems, judges and
clerks of election, the form of ballots, balloting, challenging, canvassing, certifying
the result, securing the purity of elections, guarding against abuses of the elective
franchise, and tending to make such elections or electoral votes non-partisan in
character; . . . . ” (Emphasis added.)
13 C.R.S. § 1-11-203.5(3).
7
In interpreting and applying this Section 6.d., the courts have long held that the regulation of
municipal elections is a matter of local concern and not statewide concern.14 Consequently, if
a home rule city's election law conflicts with a state statute, the city's law is controlling and
supersedes the state statute.15 In addition to this grant of home rule authority over its
elections, the City and all other municipalities are empowered in Article V, Section 1(9) of
the Colorado Constitution to "provide for the manner of exercising the initiative and
referendum powers as to their municipal elections."16
However, even with these constitutional grants of authority concerning municipal
elections given to home rule cities in Article XX, Section 6 and in Article V, Section 1(9),
the election provisions in TABOR, as constitutional provisions too, apply for the most part
to home rule cities. TABOR Section 20(1) states that all of TABOR's provisions "supersede
conflicting state constitutional, state statutory, charter, or other state or local provisions."17
This is true, however, only to the extent that the express provisions of TABOR make them
applicable to a particular municipal TABOR measure.18
The City’s Charter assumes this grant of constitutional authority to control the
City’s elections in Charter Article VII, Section 1, which reads:
“The Council shall provide by ordinance for the manner of holding city
elections. All ordinances regarding elections shall be consistent with the
provisions of this Charter and the state Constitution. Any matter regarding
elections not covered by the state Constitution, this Charter or ordinance of the
14 People ex rel. Tate v. Prevost, 134 P. 129, 134 (Colo. 1913); May v. Town of Mt. Village, 969 P.2d 790, 794
(Colo. App. 1998).
15 Gosliner v. Denver Election Commission, 552 P.2d 1010, 1011-12 (Colo. 1976).
16 Mccarville v. City of Colorado Springs, 338 P.3d 1033, 1036 (Colo. App. 2013); Bruce v. City of Colorado
Springs, 252 P.3d 30, 33-34 (Colo. App. 2010).
17 See, Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994).
18 Bruce v. City of Colorado Springs, 129 P.3d 988 (Colo. 2006).
8
Council shall be governed by the laws of the State of Colorado relating to
municipal elections.”
Relating to this authority, the following Section 6(b) in Charter Article X provides the specific
criteria by which the Council is to set the ballot titles for the City’s initiative and referendum
measures:
“Ballots. Upon ordering an election on any initiative or referendum measure,
the Council shall, after public hearing, adopt by resolution a ballot title and
submission clause for each measure. The ballot title shall contain information
identifying the measure as a city initiated or citizen initiated measure. The
submission clause shall be brief, shall not conflict with those selected for any
petition previously filed for the same election, and shall unambiguously state
the principle of the provision sought to be added. The official ballot used when
voting upon each proposed or referred measure shall have printed on it the
ballot title and submission clause and shall contain the words, "Yes/For" and
"No/Against" in response to each measure.” (Emphasis added.)
This Charter provision establishes the standard by which this Court should judge the sufficiency
of the form and content of the submission clause contested here. Therefore, as relevant in this
contest, the submission clause is to be “brief” and “unambiguously state the principle of the
provision sought to be added.”
In paragraphs 9 through 13 of his Petition, the Plaintiff argues for a different standard of
review. The Plaintiff argues that the Court should apply the criteria in C.R.S. § 31-11-111(3),
which reads:
“In fixing the ballot title, the legislative body or its designee shall 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 would be unclear. The ballot title shall not conflict with those titles
selected for any other measure that will appear on the municipal ballot in the same
election. The ballot title shall correctly and fairly express the true intent and
meaning of the measure.” (Emphasis added.)
However, C.R.S. 31-11-102 states that Article 11 of Title 31, the Article in which Section 31-11-
111 is found, “shall apply to municipal initiatives, referenda and referred measures unless
9
alternative procedures are provided by charter, ordinance, or resolution” (emphasis added).
Charter Article X, Section 6(b) provides these alternative procedures.
As relevant here, the criteria in Section 31-11-111(3) (C.R.S. “Section 111(3)”)
applicable to the submission clause differ from the criteria applicable to ballot titles in Charter
Article X, Section 6(b) (“Charter Section 6(b)”) in the following four respects.
1. Charter Section 6(b) requires that the submission clause be “brief,” but C.R.S.
Section 111(3) does not;
2. Charter Section 6(b) requires that the submission clause “unambiguously state
the principle of the provision sought to be added,” but Section C.R.S. 111(3)
does not;
3. C.R.S. Section 111(3) requires that the ballot title should be fixed with
consideration of “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 would be unclear,” but Charter Section 6(b)
does not; and
4. C.R.S. Section 111(3) requires that the ballot title “correctly and fairly express
the true intent and meaning of the measure,” but Charter Section 6(b) does not.
Unfortunately, the City has been unable to find any reported Colorado appellate court decisions
that would provide direct guidance as to how these differing criteria should be applied by this
Court to the City’s submission clause. There are, however, many Colorado Supreme Court
decisions reviewing the ballot titles that have been set for statewide ballot initiatives and
referendum by Colorado’s Title Board established in C.R.S. § 1-40-106(1) (the “Title Board”).
The City agrees with the Plaintiff that these Supreme Court decisions provide helpful
guidance to this Court in its review of the submission clause Council adopted in the Ballot
Ordinance.19 This seems particularly appropriate considering that that the standard of review
the Supreme Court applies in reviewing the Title Board’s ballot titles is found in the following
19 See, Petition ¶ 14.
10
C.R.S. § 1-40-106(3)(b), and it essentially contains a combination of the relevant criteria found
in C.R.S. Section 111(3) and Charter Section 6(b):
“In setting a title, the title board shall 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/for” or “no/against” vote will be
unclear. The title for the proposed law or constitutional amendment, which shall
correctly and fairly express the true intent and meaning thereof, together with the
ballot title and submission clause, shall be completed, except as otherwise required
by section 1-40-107, within two weeks after the first meeting of the title board.
Immediately upon completion, the secretary of state shall deliver the same with the
original to the designated representatives of the proponents, keeping the copy with a
record of the action taken thereon. Ballot titles shall be brief, shall not conflict with
those selected for any petition previously filed for the same election, and, shall be in
the form of a question which may be answered “yes/for” (to vote in favor of the
proposed law or constitutional amendment) or “no/against” (to vote against the
proposed law or constitutional amendment) and which shall unambiguously state
the principle of the provision sought to be added, amended, or repealed.”
(Emphasis added.)
In applying the standard of review in this statute, the Supreme Court has followed several rules
of construction and presumptions.
The Supreme Court has long held and frequently stated that its review of the titles and
submission clauses in the ballot titles set by the Title Board for statewide initiatives and
referenda is limited in scope.20 It has variously described this review, including as follows:
“In reviewing the [Title] Board’s title setting process, the law is settled that this
court should not address the merits of the proposed initiative and should not
interpret the meaning of proposed language or suggest how it will be applied if
adopted by the electorate; we should resolve all legitimate presumptions in favor of
the Board; and we will not interfere with the Board’s choice of language if the
language is not clearly misleading. Our duty is to ensure that the title, ballot title,
submission clause, and summary fairly reflect the proposed initiative so that
20 In the Matter of the Title, Ballot Title and Submission Clause for 2013-2014 #85, 328 P.3d 136, 143 (Colo. 2014);
In the Matter of the Title, Ballot Title and Submission Clause, and Summary Pertaining to the Proposed Initiative on
School Pilot Program, 874 P.2d 1066, 1070 (Colo. 1994).
11
petition signers and voters will not be misled into support for or against a
proposition by reason of the words employed by the Board.”21
The Supreme Court has also said:
“We have interpreted this statute to impose on the Title Board the job of set[ting]
fair, clear, and accurate titles that do not mislead the voters through a material
omission or misrepresentation. This requirement, however, does not mean that the
Titles need to contain every detail of the proposal. The Titles also are not required
to explain every possible effect of enacting the initiative. Furthermore, as noted
above, the Title Board has broad discretion in drafting the Titles, and as a result,
when we review the Titles, we grant great deference to the Title Board’s decisions.
As such, we only reverse the Titles where the language is clearly misleading.
. . . .
Furthermore, the fact that the Titles do not discuss all of the potential impacts of the
initiative is not improper, as the Title Board may not speculate on the potential
effects of the initiative if enacted.”22 (Cites and internal quotes omitted.)
Finally, as relevant here, the Supreme Court has said:
“The Title Board is given discretion in resolving interrelated problems of length,
complexity, and clarity in setting a title and ballot title and submission clause. The
Title Board’s duty in setting a title is to summarize the central features of a
proposed initiative; in so doing, the Title Board is not required to explain the
meaning or potential effects of the proposed initiative on the current statutory
scheme.
When reviewing a challenge to the title and ballot title and submission clause, we
employ all legitimate presumptions in favor of the propriety of the Title Board’s
actions. We will not consider whether the Title Board set the best possible title.
Rather, the title must fairly reflect the proposed initiative such that voters will not
be misled into supporting or opposing the initiative because of the words employed
by the Title Board.” (Emphasis added and cites omitted.)
21 In the Matter of the Title, Ballot Title and Submission Clause, and Summary Pertaining to the Workers Comp
Initiative Adopted on January 6, 1993, 850 P.2d 144, 146 (Colo. 1993).
22 In the Matter of the Title, Ballot Title, and Submission Clause for 2013-2014 #89, 328 P.3d 172, 179 (Colo. 2014)
(the Court defines “Titles” in this decision as collectively the ballot initiative’s “title, and its ballot title and
submission clause,” 328 P.3d at 174).
12
After applying these standards of review to the Council’s submission clause here challenged
and for the other reasons hereafter discussed, this Court should deny the Plaintiff’s contest in all
respects.
III. ARGUMENT
A. The Submission Clause is Fair, Clear, Accurate and not Misleading without the Comma
The Plaintiff contends in paragraphs 17 through 20 of the Petition that a comma is
needed in the submission clause right after the “and” that is just before the phrase “in exercising
this authority.” The Plaintiff appears to claim that without this comma, the submission clause is
not grammatically correct which results in a submission clause that will be misleading and
unclear to the voters. The Plaintiff presents two edited versions of the submission clause which
he argues demonstrates this. However, these two versions do not accurately reflect what the
question is asking.
A more accurate way to edit the submission clause to determine the effect of having or
not having this comma is to eliminate all the parenthetical clauses that precede the “and” in
question. To accomplish this, the submission clause is edited as follows:
Shall Article XII of the City of Fort Collins Charter be amended to allow, but not
require, City Council to authorize, by ordinance and without a vote of the electors,
the City’s electric utility or a separate telecommunications utility to provide
telecommunication facilities and services, including the transmission of voice, data,
graphics and video using broadband Internet facilities, to customers within and
outside Fort Collins, whether directly or in whole or part through one or more third-
party providers, and in exercising this authority, to: (1) issue securities and other
debt, but in a total amount not to exceed $150,000,000; (2) set the customer charges
for these facilities and services subject to the limitations in the Charter required for
setting the customer charges of other City utilities; (3) go into executive session to
consider matters pertaining to issues of competition in providing these facilities and
services; (4) establish and delegate to a Council-appointed board or commission
some or all of the Council’s governing authority and powers granted in this Charter
amendment, but not the power to issue securities and other debt; and (5) delegate to
13
the City Manager some or all of Council’s authority to set customer charges for
telecommunication facilities and services?
These edits removing the parenthetical clauses result in the following question:
Shall Article XII of the City of Fort Collins Charter be amended to allow City
Council to authorize the City’s electric utility or a separate telecommunications
utility to provide telecommunication facilities and services to customers within and
outside Fort Collins and in exercising this authority, to: (1) issue securities and
other debt, but in a total amount not to exceed $150,000,000; (2) set the customer
charges for these facilities and services subject to the limitations in the Charter
required for setting the customer charges of other City utilities; (3) go into
executive session to consider matters pertaining to issues of competition in
providing these facilities and services; (4) establish and delegate to a Council-
appointed board or commission some or all of the Council’s governing authority
and powers granted in this Charter amendment, but not the power to issue securities
and other debt; and (5) delegate to the City Manager some or all of Council’s
authority to set customer charges for telecommunication facilities and services?
Elimination of the parenthetical clauses reveals a question which clearly asks if the Charter can
be amended to grant to Council the authority to provide telecommunication facilities and
services to customers “and in exercising this authority, to” do the things described in
subparagraphs (1) through (5).
Viewed this way, whether a comma is included or not after the “and” does not change
this clear meaning of the question and it is certainly not something that will “mislead voters
through a material omission or misrepresentation.”23 The Plaintiff is making a hyper-technical
grammatical point which, if judged by the Supreme Court’s standards of review discussed
above, falls far short of causing a submission clause that is not clear, fair or accurate or that will
mislead voters into supporting or opposing this ballot measure. And isn’t even correct
necessarily.
The Court should therefore not rewrite the submission clause to add the comma
proposed by the Plaintiff.
23 328 P.3d at 179.
14
B. A Reference to Revenue Sources Available to Pay Securities and other Debt Issued Not
Required
Plaintiff contends in paragraphs 21 through 24 of the Petition that wording should be
added to subsection (1) of the submission clause to state what revenues might be used to repay
any securities or other debt issued in the future to fund telecommunication facilities and
services. The Plaintiff argues that this added wording should read: “repayable with revenue
from any source including sales and use tax but not with property tax.”
In support of this, the Plaintiff quotes in Petition paragraph 22 the first sentence from
Section 7(b) of the proposed Charter amendment,24 which would authorize the Council acting
as itself or as the board of the City’s existing electric utility enterprise or as the board of a new
telecommunications utility enterprise to issue revenue securities and other debt obligations as
currently authorized in Sections 19.3 and 19.4 of Charter Article V.25 In Petition paragraph 23
he quotes Section 19.3(a) in Charter Article V, which does currently authorize the City to pay
its issued revenue securities from a variety of revenue sources, including sales and use taxes,
but not ad valorem taxes.
Based on this, the Plaintiff appears to argue that failing to state in the submission clause
the possible sources of revenue that might be used to repay any revenue securities or other debt
obligation issued to fund telecommunication facilities and services renders the submission
clause “misleading” and “unclear.”
In many of its decisions, the Supreme Court addresses claims that the submission clause
fails to include certain details found in the proposed initiative and, as result, the Court should
24 See Section 2 of the Ballot Ordinance.
25 An “enterprise” is defined in Section 20(2)(d) of TABOR as a “government-owned business authorized to issue its
own revenue bonds and receiving under 10% of annual revenues in grants from all Colorado state and local
governments combined.” An enterprise is not considered a “district” under TABOR and is, therefore, not subject to
any of TABOR’s requirements when it issues securities or other debt. TABOR Foundation v. Colorado Bridge
Enterprise, 353 P.3d 896 (Colo. App. 2014).
15
rewrite the clause to include these details. The Supreme Court has declined to do so unless the
submission clause contains a significant and material omission.26 It has also suggested that if
the language of the submission clause informs voters of the possibility of the missing detail,
that this is sufficient because:
“This alerts concerned voters that they should read the complete language of the
summary or of the initiative in order to determine what these priorities are. The
Board need not and often cannot describe every feature of a proposed initiative in a
title or ballot title and submission clause and simultaneously heed the mandate that
such documents be concise. To require such would be to transform what the
General Assembly intended—a relatively brief and plain statement by the Board
setting forth the central features of the initiative for the voters—into an item-by-
item paraphrase of the proposed constitutional amendment or statutory provision.”27
(Cites and internal quotes omitted.)
Here, the Council’s submission clause informs the voters that securities and other debt are likely
to be issued to fund the telecommunication facilities and services and that these will naturally be
repaid with some category of City revenues. By reviewing the proposed Charter language, a
concerned voter will see what revenues can be used for such repayment. Failure to include this
detail in the submission clause is clearly not a significant and material omission under these
standards.
The Court should therefore not add the following phrase to subsection (1) of the
submission clause: “repayable with revenue from any source including sales and use tax but not
with property tax.”
C. The Submission Clause Should Not be Rewritten to Address an Alleged Conflict between the
Proposed Charter Amendment and Existing Charter Provisions
In Petition paragraphs 25 through 28, the Plaintiff argues that the phrase “without
appropriation by City Council” should be also be added to subsection (1) of the submission
26 In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1997-98 #62, 961 P.2d 1077,
1082 (Colo. 1998).
27 Id. at 1083.
16
clause. He contends that the following sentence in the proposed Section 7(b) of the Charter
amendment is being “added or amended in such a way as to create a conflict with or an
exemption from current requirements of the Charter”28:
“The City’s payment of and performance of covenants under the securities and other debt
obligations issued under this subsection (b) and any other contract obligations of the City
relating to the provision of telecommunication facilities and services under this Section,
shall not be subject to annual appropriation so long as annual appropriation is not
required under Article X, Section 20 of the Colorado Constitution.”29
He contends that this “conflict” or “exemption” “must be explicitly approved by including” his
proposed language in the submission clause. The existing Charter provisions he cites as being in
conflict with the above-quoted provision are found in Sections 8(b) and 8(c) of Charter Article
V.30
This kind of argument is one that the Supreme Court has addressed many times as well.
These arguments have usually arisen in the context of a claim that an initiative proposing an
amendment to the Colorado Constitution will amend or otherwise be in conflict with some
existing provision in the Constitution or some other state or federal law. The Supreme Court has
consistently refused to rewrite submission clauses to address such conflict claims. The Court has
said:
28 Petition ¶ 26.
29 See Section 2 of the Ballot Ordinance.
30 These Sections 8(b) and 8(c) read:
(b) It shall be unlawful for any service area, officer or agent of the city to incur or contract any expense
or liability or make any expenditure for or on behalf of the city unless an appropriation therefor shall
have been made by the Council. Any authorization of an expenditure or incurring of an obligation by any
officer or employee of the city in violation of this provision shall be null and void from its inception.
(c) Nothing herein shall apply to or limit the authority conferred by this Article in relation to bonded
indebtedness, or to the collection of moneys by special assessments for local improvements; nor shall it
be construed to prevent the making of any contract or lease providing for expenditures beyond the end of
the fiscal year in which it is made, so long as such contract or lease is made subject to an appropriation
of funds sufficient to meet the requirements of Section 8(b) above.
17
“As we discussed above, however, the potential effect of a proposed initiative on other
constitutional or statutory provisions need not be included in the title or submission
clause. In performing its title-setting function, the Board may not speculate on how a
potential amendment would be interpreted and, if possible, harmonized with other
relevant provisions. Such considerations are far beyond the scope of our review of the
titles and summary of an initiative petition.”31 (Emphasis added.)
More recently, the Supreme Court stated:
“However, the legal interpretation or potential effect of the Proposed Initiatives is beyond
our scope of review here. See Blake v. King, 185 P.3d 142, 145 (Colo.2008) (“At this
stage, we do not address the merits of a proposed measure, interpret it, or construe its
future legal effects.”).
. . . .
Moreover, a title is not unclear or misleading simply because it does ‘not refer to the
initiative’s possible interplay with existing state and federal laws.’”32 (Emphasis in
original.)
Clearly, the Plaintiff is asking the Court here to add wording to the submission clause set by
Council to address what Plaintiff alleges is a potential legal conflict with or divergence between
the proposed Charter amendment and existing Charter provisions. This is exactly what the
Supreme Court has said should not be done in the judicial review of a ballot title’s submission
clause.
The Court should therefore not add the following phrase to subsection (1) of the
submission clause: “without appropriation by City Council.”
D. The Proposed Charter Amendment and its Ballot Title are Not Subject to TABOR
In Petition paragraphs 29 through 33, the Plaintiff argues that the proposed Charter
31 In the Matter of the Title, Ballot Title and Submission Clause, and Summary Approved January 19, 19914 and
February 2, 1994, 873 P.2d 718, 721 (Colo. 1994). See also, In the Matter of the Title, Ballot Title and Submission
Clause, and Summary Pertaining to the Proposed Initiative on School Pilot Program, 874 P.2d 1066, 1071 (Colo.
1994) (“As we have indicated, it is not our province in this statutory proceeding to address the possible interaction
between the proposed amendment and any current or future provision of the Colorado Constitution”).
32 In the Matter of the Title, Ballot Title and Submission Clause for 2013-2014 #85, 328 P.3d 136, 144-45 (Colo.
2014).
18
Amendment and its ballot title is a TABOR “ballot issue”33 subject to the election requirements
of TABOR Section 20(3)(c) and, therefore, the submission clause must begin with the phrase:
“Shall City of Fort Collins Debt be increased by $150,000,000, with a repayment cost of
$200,000,000.”
There are two flaws in the Plaintiff’s reasoning on this issue. First, the proposed Charter
amendment is not the kind of “ballot issue” that is subject to TABOR because it does not contain
a proposal for the “creation of any multiple-year year direct or indirect debt or other financial
obligation” as contemplated in TABOR Section 20(4)(b). Second, even if this Charter
amendment could be construed to include a proposal to create debt, it is not a proposal for a
“bonded debt” increase as contemplated in TABOR Section 20(3)(c), the provision the Plaintiff
relies on in arguing for the wording he proposes be added to the submission clause.
In 1996, the Colorado Supreme Court addressed in Zaner v. City of Brighton34
the
question of what local ballot questions, like the City’s proposed Charter amendment, are
considered “ballot issues” under TABOR and, therefore, subject to TABOR’s election
requirements. In Zaner, the Court was specifically asked to decide whether the ballot measure
that Brighton’s city council submitted to its electorate at a special election seeking approval of
the transfer of the city’s electric utility franchise from Public Service to United Power was
subject to TABOR’s election requirements in Section 20(3)(a)-(c). More specifically, the
requirement in Section 20(3)(a) that TABOR ballot-issue elections can only be held on certain
dates. The Court rejected a broad interpretation of the term “ballot issue” as defined in TABOR
Section 20(2)(a), holding:
33 TABOR Section 20(2)(a) defines a “ballot issue” as “a non-recall petition or referred measure in an election.”
However, the Colorado Supreme Court has interpreted this term as not applying to ballot issues that are “non-fiscal
matters.” Zaner v. City of Brighton, 917 P.2d 280 (Colo. 1996).
34 917 P.2d 280 (Colo. 1996).
19
“We have determined that article X, section 20(3)(a), applies only to issues of
government financing, spending, and taxation governed by article X, section 20, and not
to all issues regardless of subject matter nor even to all issues which can be characterized
as fiscal. In our view, the transfer of a utility franchise from one utility company to
another is not an issue of government financing, spending, or taxation governed by article
X, section 20.”35 (Emphasis added.)
In so holding, the Supreme Court took a practical approach and looked to the true intent of the
ballot measure, even though the plaintiffs had argued that the transfer of utility franchise does
constitute a financial issue.36
The true intent and purpose of the City’s proposed Charter amendment is not to create
any debt, but to ask the voters whether in the future the Council can, in the exercise of the
powers and authority granted to it in this amendment, use the City’s electric utility or a new
telecommunications utility to begin providing telecommunication facilities and services to the
customers in and out of the City. And yes, the powers that the Council might exercise in the
future to do this might include issuing revenue securities or other debt obligations to fund such
facilities and services, as Council is already authorized to do under Section 19.3 of Charter
Article V for its existing utilities and for other proper municipal purposes. And, if in issuing
such revenue securities TABOR requires another election, the City will be required to comply
with all applicable TABOR election requirements.37 However, this is not is what is happening in
this proposed Charter amendment.
35 Id. at 288.
36 Id. See also, Bicklel v. City of Boulder, 885 P.2d 215, 234-35 (Colo. 1994) (“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.20 In our view, City Question B is thus more properly viewed as a ballot issue
for the granting of a franchise, rather than one “for tax or bonded debt increases” for purposes of subdivision 3(c).
Therefore, the City was not required to begin the ballot title for that measure with the language “SHALL CITY
TAXES BE INCREASED BY UP TO 8 MILLION DOLLARS ...?” [emphasis added]).
37 As explained in footnote 25 above, if the Council issues revenue securities as the board of the City’s electric
utility enterprise or as the board of a new telecommunications utility enterprise, compliance with TABOR’s election
requirements would not be required.
20
This proposed Charter amendment only seeks voter approval to grant to Council certain
new, specific powers related to providing telecommunication facilities and services and it does
not constitute or represent the exercise of these newly granted powers. Again, if and when the
Council seeks to exercises these powers, it will be required to comply with all applicable laws,
including TABOR.
However, even if it were the case that the proposed Charter amendment constitutes a
TABOR ballot issue for the creation of new debt because it authorizes the Council to issue
revenue securities under Section 19.3 of Charter V, such revenue securities are not considered
“bonded debt” as this term is used in TABOR Section 20(3)(c). Therefore, the language required
in Section 20(3)(c) is not required in the Council’s submission clause.
In Bickel v. City of Boulder,38 the Supreme Court considered the meaning of “bonded
debt” as this term is used in the “anti-consolidation” provision found in TABOR Section
20(3)(a). This provision reads: “Except for petitions, bonded debt, or charter or constitutional
provisions, districts may consolidate ballot issues . . . . “ (Emphasis added.) In construing the
meaning of “bonded debt” in Section 20(3)(a), the Court said:
“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. In the case of
County Question A, because the district sought approval of ‘revenue bonds’ as those are
defined in subdivision 29–2–112(1), 12A C.R.S. (1986), that ballot issue did not involve
‘bonded debt’ at all. See § 29–2–112(9) (“The revenue bonds shall not constitute an
indebtedness of the county, city or incorporated town within the meaning of
constitutional or statutory debt limitation or provision.”).” (Emphasis added.)
TABOR Section 20(3)(c) uses the term “bonded debt” too and it reads in relevant part: “Ballot
titles for . . . bonded debt increases shall begin, . . . SHALL (DISTRICT) DEBT BE
38 885 P.2d 215 (Colo. 1994).
21
INCREASED (principal amount), WITH REPAYMENT COST OF (maximum total
district cost), . . . .”
Here, the power to be granted to the Council to issue securities is to issue revenue
securities as authorized in Section 19.3(a) of Charter Article V and it is the grant of this power
that the Plaintiff argues triggers the need for the language quoted above from TABOR Section
20(3)(c). However, the revenue securities authorized in Section 19.3(a) are the type of revenue
bonds that are contemplated in C.R.S. Section 29-2-112(1) and (9), the statutes referred to above
in Bickle and pursuant to which the Court concluded that such revenue bonds are not “bonded
debt” under TABOR.
These statutes read:
(1) Any county, city, or incorporated town which has pledged sales or use tax revenue, or
both, solely for capital improvement purposes and has created a sales and use tax capital
improvement fund may, in anticipation of collection of sales or use tax revenues, issue
revenue bonds payable solely from the fund for the purpose of financing capital
improvements.
(9) The revenue bonds shall not constitute an indebtedness of the county, city, or
incorporated town within the meaning of any constitutional or statutory debt limitation or
provision. Each bond issue under this section shall recite in substance that said bonds,
including the interest thereon, are payable solely from a special fund and that said bonds
do not constitute a debt within the meaning of any constitutional or statutory limitation.
Section 19.3(a) reads:
(a)The city, by Council action and without an election, may issue securities made
payable solely from revenues derived from the operation of the project or capital
improvement acquired with the securities' proceeds, or from other projects or
improvements, or from the proceeds of any sales tax, use tax or other excise tax, or
solely from any source or sources or any combination thereof other than ad valorem
taxes of the city.
Clearly, the revenue securities to be issued under Section 19.3(a) are the same as the revenue
bonds contemplated under Section 29-1-112.39 As such, revenue securities are not “bonded
39 See, Leek v. City of Golden, 870 P.2d 580, 588 (Colo. App. 1993).
22
debt” under TABOR Section 20(3)(a). Consequently, Council’s submission clause is not
subject to the language requirement of Section 20(3)(a) even if it could be construed as a
TABOR ballot issue.
The Court should therefore not add the following language to the beginning of the
submission clause: “Shall City of Fort Collins Debt be increased by $150,000,000, with a
repayment cost of $200,000,000.”
E. The Proposed Charter Amendment and its Ballot Title are Not Subject to TABOR’s
“Anti-Consolidation Clause”
In Petition paragraphs 34 through 36, the Plaintiff argues that the Charter amendment
and its ballot title consolidate two different issues in violation of the “anti-consolidation clause”
of TABOR Section 20(3)(a), which reads: “Except for petitions, bonded debt, or charter or
constitutional provisions, districts may consolidate ballot issues.” (Emphasis added.) The
Plaintiff contends that the Charter amendment and its ballot title present a TABOR question for
the creation of debt, as indicated in Section III.D. above, and a charter amendment and so
combining these two issues violates TABOR Section 20(3)(a).
For the same reasons explained in Section III.D. above, the proposed Charter amendment
is not seeking authorization for the creation of new debt, so it is not a TABOR ballot issue. And,
even if it could be considered a TABOR issue, the so-called new debt created would be revenue
bonds which, for the reasons also discussed in Section III.D., is not “bonded debt” under
TABOR Section 20(3)(A), so the “anti-consolidation clause” in Section 20(3)(a) is not
applicable here. The only thing the proposed Charter amendment is doing is amending the
Charter.
It is unclear what the Plaintiff is asking this Court to do in response to this ground of his
contest. In Petition paragraph 38 he appears to be asking the Court to allow “no ballot question
23
at all.” However, it is clear that Section 1-11-203.5(3) requires this Court to fix any defects in
the ballot title by rewriting it to conform to applicable law. If the Court is unable to do this, the
Supreme Court has made it clear in Cacioppo v. Eagle County School District40 that the
challenge to the ballot title is not a form and content challenge, but a substantive challenge to the
ballot measure that cannot be addressed in the summary proceedings provided under Section 1-
11-203.5.
The Court should therefore not make any changes to the submission clause on the basis
that it violates the “anti-consolidation clause” in TABOR Section 20(3)(a).
WHEREFORE, for all the reasons stated above, the Court should deny in all respects the
Plaintiff’s contest as presented in the Petition and find that the form and content of the Council’s
ballot title is in conformity with all applicable legal requirements.
DATED this 31st day of August, 2017.
FORT COLLINS CITY ATTORNEY’S OFFICE
By: s/John R. Duval
John R. Duval, #10185
Attorneys for Defendant
And
WICK & TRAUTWEIN, LLC
By: s/Kimberly B. Schutt
Kimberly B. Schutt, #25947
Attorneys for Defendant
This document was served electronically pursuant to C.R.C.P. 121 §1-26. The original pleading
signed by defense counsel is on file at the offices of Wick & Trautwein, LLC and the Fort Collins
City Attorney’s Office]
40 92 P.3d 453, 465 (Colo. 2004).
24
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing CITY’S
BRIEF IN OPPOSITION TO PLAINTIFF’S CONTEST TO FORM AND
CONTENT OF BALLOT QUESTION PROPOSING AMENDMENT TO
CHARTER PERTAINING TO TELECOMMUNICATION FACILITIES
AND SERVICES was filed via Integrated Colorado Courts E-Filing System (ICCES) and
served this 24th day of August, 2017, on the following:
Eric Sutherland
3520 Golden Current Blvd. Via Electronic Mail: sutherix@yahoo.com
Fort Collins, CO 80521
s/ Cary C. Alton
[The original certificate of electronic filing signed by Cary C. Alton is on file at the Fort Collins
City Attorney’s Office]