Summary
In Chesser v. Buchanan (Colo. 1977), 193 Colo. 471, 568 P.2d 39, for example, the Colorado Supreme Court rejected an equal protection challenge by electors and residents of a tunnel improvement district to a statute permitting only those who paid personal property taxes within the year preceding the election to vote for district commissioner.
Summary of this case from Johnson v. KillingsworthOpinion
No. 27426
Decided August 22, 1977. Rehearing denied September 12, 1977.
Class action by registered electors and residents of Moffat Tunnel Improvement District seeking a declaratory judgment that certain statutory qualification to vote was repugnant to Colorado's election code and was unconstitutional as a denial of equal protection. Judgment for defendants.
Affirmed
1. ELECTIONS — Code — Basic Voter Qualifications — Special Purpose — Additional Qualification. Colorado's election code sets forth the basic voter qualifications for all general, primary, and special elections; and there is no statutory provision which states that in special purpose elections an additional voter qualification cannot be imposed.
2. Special Purpose — Normal Process — Additional Voter Qualification — Imposed — Tax Payment — Statute. The legislative intent behind section 32-8-103(3), C.R.S. 1973, was that special purpose election would be conducted within parameters of normal electoral process and that because of special nature of district, this additional voter qualification — payment of tax on real property within the special district — would be imposed.
3. Vote — Commissioners — Special District — Pay — Tax — Property — Constitutional. It is neither repugnant to the Colorado election code nor unconstitutional to require that those who vote for Moffat Tunnel Improvement District commissioners have paid tax on property within the special district; there is no conflict or inconsistency between the provisions of section 32-8-103(3), C.R.S. 1973, of the Moffat Tunnel Improvement District law and the election code.
4. "Rational Basis" Standard — Electoral Qualifications — Payment of Taxes — District — Equal Protection. Under the "rational basis" standard in reviewing electoral qualification provisions — which require voters in improvement districts to have paid taxes on real property within the district — reviewing court finds that there exists a rational basis in instant case for limiting the franchise to tax paying electors within the Moffat Tunnel Improvement District; accordingly, there is no denial of the constitutional right to the equal protection of the laws.
Appeal from the District Court of the City and County of Denver, Honorable Luis D. Rovira, Judge.
Victor F. Crepeau, H. William Huseby, for plaintiffs-appellants.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy, Edward G. Donovan, Solicitor General, Mary A. Rashman, Assistant, Jeffrey G. Pearson, Assistant, for defendants-appellees, Mary Estill Buchanan, Secretary of State, State of Colorado; the Election Commission of the City and County of Denver; the Clerks and Recorders of the Counties of Adams, Boulder, Gilpin, Grand, Eagle, Moffat and Routt, State of Colorado.
Patrick R. Mahan, Cile Pace, for defendant-appellee, Clerk and Recorder of Jefferson County.
Charles W. Ennis, for Moffat Tunnel Commission.
Appellants are registered electors and residents of the Moffat Tunnel Improvement District. Because they did not pay tax on any real property within the district in 1975, they were not permitted to vote for district commissioners at the election in November, 1976. In a class action, appellants sought a declaratory judgment that this statutory qualification to vote was repugnant to the Colorado election code and was unconstitutional as a denial of equal protection. The trial court rejected the appellants' contentions and entered a judgment dismissing their petition for a declaratory judgment. We affirm.
In 1922, the general assembly created the Moffat Tunnel Improvement District to promote the health, comfort, safety, convenience and welfare of the people of Colorado by providing a tunnel through the Continental Divide for communication and commerce between the eastern and western slopes of the Rocky Mountains. The general assembly declared that the tunnel would be "of especial benefit to the property within the boundaries of the improvement district." Section 32-8-101, C.R.S. 1973. A board of commissioners was designated to run the district and was authorized to construct and maintain the tunnel, contract and charge appropriate rent for its use, issue and retire bonds to finance the tunnel, exercise the power of eminent domain if necessary, hire necessary personnel, assess regular and special assessments from landowners, and invest funds in United States bonds. Sections 32-8-105, et seq., C.R.S. 1973.
Two bond issues paid for construction of the tunnel which the board has leased to the Denver and Rio Grande Railroad and to the Denver Water Board. Whenever revenue from leasing is insufficient to pay for interest on the bonds, or to meet other district expenses, or to retire the bonds at maturity, the commissioners are authorized to assess real estate owners within the district in proportion to the benefits accrued to their real estate by reason of the tunnel. Sections 32-8-110 and 32-8-112, C.R.S. 1973. Unpaid assessments constitute a perpetual lien on the land, equivalent to a tax lien. Section 32-8-117, C.R.S. 1973. Since 1971, the board has made no special assessments.
The pertinent portion of Section 32-8-103(3), C.R.S. 1973 which provides for the election of the board of commissioners is as follows:
". . .[S]uch election shall be conducted in accordance with the general election laws of the state. Only qualified electors who have paid a tax on real estate in said district in the year preceding the year in which any election is held shall be allowed to vote at any general election held under this article. . ."
I.
The appellants argue on this appeal that the tax paying requirement is repugnant to and in conflict with the Colorado election code. They point out that age, citizenship, residency, and registration are the only requirements which are imposed by the election code. See sections 1-2-101 and 1-2-201, C.R.S. 1973. The appellants thus advocate their conclusion that the additional requirement for voting for board members as set forth in section 32-8-103(3) is invalid and should be considered as eliminated from the section.
[1] Colorado's election code sets forth only the basic voter qualifications for all general, primary, and special elections. Section 1-1-101, et seq., C.R.S. 1973. There is no statutory provision which states that in special purpose elections, such as we are concerned with here, an additional voter qualification cannot be imposed.
[2] In section 32-8-103(3), the provision that only "qualified electors who have paid a tax on real estate in said district" shall be allowed to vote for members of the board, immediately follows the statement that such election shall be conducted in accordance with general election laws. It thus appears obvious that the legislative intent was that this special purpose election be conducted within the parameters of the normal electoral process and that because of the special nature of the district, this additional voter qualification would be imposed.
[3] There is no conflict or inconsistency between the provisions of section 32-8-103(3) of the Moffat Tunnel Improvement District law and the election code.
II.
[4] Appellants also contend that the landowner classification no longer accurately distinguishes between those who are benefited and burdened by the district and those who are not. They allege that buyers and sellers outside the district benefit significantly and that land within the district is no longer specially burdened, since no assessments have been made since 1971. On this basis, the appellants urge us to find that the denial of their right to vote about a matter of interest to them deprives them of their constitutional right to the equal protection of the laws. Appellants argue that because their fundamental right to vote has been impaired, the proper standard of review is strict scrutiny and that a compelling state interest must be shown in order to justify depriving appellants of their right to vote for board members.
We reject petitioners' arguments and believe that Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and its companion case Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973) are dispositive. In these cases, the United States Supreme Court applied a "rational basis" standard in reviewing electoral qualification provisions which required voters in improvement districts to have paid taxes on real property within the districts. In both cases, it was held that the limitation of the franchise to landowners comported with equal protection requirements.
Normally, the strict scrutiny standard does apply to alleged deprivations of the right to vote. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) and Jarmel v. Putnam, 179 Colo. 215, 499 P.2d 603 (1972). However, the Salyer and Associated Enterprises cases carved out an exception to the general rule for special improvement districts in which voters were required to have paid a tax on real property within the district. Two elements seem to be necessary to invoke this exception: (1) the improvement district must be of relatively limited authority and purpose and (2) the improvement district must have a disproportionate effect on landowners within the district.
The Moffat Tunnel Improvement District meets both requirements. While the board exercises a number of ordinary governmental powers, its use of those powers is limited to matters pertaining to the construction and operation of the tunnel. The district performs no general governmental services. Its purpose is limited to benefiting the state and the district by operating the tunnel to facilitate communication and commerce between the eastern and western slopes. The district has a greater effect on land within it than on land outside it and the value of land within the district undoubtedly increased because of construction of the tunnel. See Milheim v. Moffat Tunnel Improvement Dist., 72 Colo. 268, 211 P. 649 (1922). Even more obvious is the burden which disproportionately affects land within the district. Should the management of the tunnel result in deficits, landowners within the district will be assessed in proportion to the benefit they have received, and the assessment becomes a lien on their land.
The financial provisions of the improvement districts in Salyer and Associated Enterprises resemble the provisions of the Moffat Tunnel Improvement District law. The districts in the Salyer and Associate Enterprises cases were financed with bonds and the use of the improvements were leased to provide income, but if deficits occurred, land within the districts would be assessed and liens would be imposed on the land.
Thus, there exists a rational basis for limiting the franchise to tax paying electors within the district.
The judgment of the trial court is affirmed.
MR. JUSTICE GROVES and MR. JUSTICE CARRIGAN dissent.