Summary
holding that Colorado Supreme Court lacks jurisdiction to review legislative referendum for compliance with single-subject requirement until approved by voters.
Summary of this case from Campbell v. BuckleyOpinion
No. 96SA257
September 9, 1996
Appeal from the District Court, City and County of Denver, Honorable Nancy E. Rice, Judge.
JUDGMENT AFFIRMED
Paul Grant Parker, Colorado, Attorney for Plaintiffs-Appellants.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General Timothy M. Tymkovich, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Defendant-Appellee.
The petitioners, Dennis Polhill, David Aitken, Charles A. Michael, Douglas Stuart Campbell, and Gary Swing, appeal an order of the Denver District Court granting the motion of respondent Victoria Buckley to dismiss the petitioners' action challenging Senate Concurrent Resolution (SCR) 95-2 as violative of the single-subject requirement contained in Article XIX, Section 2(3), of the Colorado Constitution. The district court dismissed the petitioners' action with prejudice, holding that SCR 95-2 encompasses a single subject and that, in any event, the issue was not ripe for determination. The petitioners appealed the district court's decision to the court of appeals. The court of appeals thereafter filed a request in this court for determination of jurisdiction, and we accepted the case pursuant to section 13-4-109(2), 6A C.R.S. (1987). We hold that courts lack subject matter jurisdiction to review a legislative referendum for compliance with the single-subject requirement of the Colorado Constitution unless and until it has been approved by the voters. We therefore need not decide whether SCR 95-2 encompasses a single subject.
The initiative and the referendum are two distinct processes by which the people of the State of Colorado may exercise the political power vested in them by the Colorado Constitution. Colo. Const. art. II, § 1; Colo. Const. art. V, § 1. The initiative refers to the process by which the people propose laws by petition to be submitted to the electorate for rejection or approval. Colo. Const. art. V, § 1(2); Clark v. City of Aurora, 782 P.2d 771, 777 (Colo. 1989). The referendum is the process by which the legislature enacts a law or proposes a constitutional amendment, then refers it to the electorate for ultimate rejection or approval. Colo. Const. art. V, § 1(3); Colo. Const. art. XIX, § 2(1); Clark, 782 P.2d at 777.
I.
In 1995, the Colorado General Assembly passed SCR 95-2, a proposed referendum on an amendment to the Colorado Constitution pursuant to Article XIX, Section 2, of the Colorado Constitution. If passed, SCR 95-2 would impose a sixty percent voter approval requirement on most future constitutional changes. SCR 95-2 would also prohibit the General Assembly from amending or repealing citizen-initiated laws within four years of enactment, unless approved by two-thirds of the members of the General Assembly. The petitioners challenged SCR 95-2 in district court, alleging that the resolution violated the single-subject requirement imposed by the Colorado Constitution. The district court dismissed the petitioners' action.
II.
Our case law embodies a strong tradition which holds that courts cannot interfere with the ongoing legislative process except in extraordinary circumstances. We have held that this court has jurisdiction to review pending legislation only when it exercises its original jurisdiction under Article VI, Section 3, of the Colorado Constitution. City of Rocky Ford v. Brown, 133 Colo. 262, 264-65, 293 P.2d 974, 976 (1956). Under Article VI, Section 3, we may answer an interrogatory addressing the constitutionality of legislation before final passage when the bill has passed the house of origin and the interrogatory is posed by the house of the General Assembly in which the bill is pending. Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 3 (Colo. 1993). We may also respond to interrogatories from the governor concerning a bill which has been enacted by the General Assembly and is awaiting action by the governor. See In re Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, 814 P.2d 875, 878 (Colo. 1991). In the case before us, we cannot exercise original jurisdiction pursuant to Article VI, Section 3, of the Colorado Constitution because we have not been asked to respond to an interrogatory regarding pending legislation.
In the absence of jurisdiction pursuant to Article VI, Section 3, other possible sources of jurisdiction in this case would be the single-subject requirement itself or a statute. However, Article XIX, Section 2(3), itself does not confer jurisdiction on the courts to review proposed constitutional amendments before they are submitted to the electorate. Moreover, although section 1-40-107, 1B C.R.S. (1995 Supp.), provides for supreme court review of citizen initiatives before they are submitted to the electorate, this statute does not confer jurisdiction upon this court to review legislative referenda before they are enacted. In the absence of such statutorily conferred jurisdiction, the courts are forbidden from interfering with the referendum process before the measure has been adopted. See McKee v. City of Louisville, 616 P.2d 969, 972 (Colo. 1980).
In the current case, our original jurisdiction pursuant to Article VI, Section 3, of the Colorado Constitution has not been invoked. Moreover, neither the single-subject requirement itself nor any statute confers jurisdiction on the courts to review a legislative referendum before it has been adopted. We know of no authority which would allow this court or the district court to review the constitutionality of SCR 95-2 before it is enacted.
III.
The petitioners further argue that we should review legislative referenda prior to their submission to the electorate because a violation of the single-subject requirement for a referred constitutional amendment will evade review if the proposed amendment cannot be reviewed until after it is adopted by the voters. Specifically, the petitioners point to that clause of Article XIX, Section 2(3), which states:
No measure proposing an amendment or amendments to this constitution shall be submitted by the general assembly to the registered electors of the state containing more than one subject, which shall be clearly expressed in its title; . . . .
Colo. Const. art. XIX, § 2(3). Thus, the petitioners contend that there is no remedy if a referred amendment violates the single-subject requirement but cannot be reviewed until after the measure has been adopted.
We reject this argument. The language of Article XIX, Section 2(3), is also found in Article V, Section 21, of the Colorado Constitution, which imposes the single-subject requirement on legislative bills:
No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; . . . .
Colo. Const. art. V, § 21. That language has not been found to limit the remedy which may be imposed if a bill is found to violate the single-subject requirement. See In re Interrogatory Propounded by Governor Roy Romer on House Bill 1353, 738 P.2d 371 (Colo. 1987) (holding as unconstitutional a bill which violated the single-subject requirement). By analogy, an adequate remedy would be available to voters who challenge a referred constitutional amendment after the referendum has been approved by the electorate.
In an appropriate case, this court may exercise its equitable powers where no adequate remedy is provided by the administrative process. Elkins v. Milliken, 80 Colo. 135, 249 P. 655 (1926). However, we have refused to create additional claims for relief which are not permitted by statute. Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938) (holding that protestor could not intervene in mandamus action against secretary of state when statute had no provision for protesting filing or refiling of initiative petition). In the present case, an adequate remedy is available for challenging a legislative referendum because the courts can review the referendum if it is approved by the electorate. Upon post-election review, if the court determines that the referendum violates the single-subject requirement of the Colorado Constitution, then the referendum will be invalidated. This is an adequate remedy, and we will therefore not create additional claims for relief which are not permitted by statute or the Colorado Constitution.
Moreover, the separation of powers doctrine prohibits this court from interfering with the legislature in its referendum process. See Speer v. People, 52 Colo. 325, 122 P. 768 (1912). In Speer, this court explained the role of the legislature in the referendum process:
In the enactment of a constitutional amendment proposed by the general assembly, . . . each step must be taken as the constitution provides, yet while the measure is before it in process of legislation, the general assembly is the judge of whether the steps are being so taken and acts upon its judgment in taking them. These are all matters of legislative control and judgment while the enactment is in process of making.
Id. at 333, 122 P. at 770. We held in Speer that under the separation of powers doctrine, the judiciary's function in the referendum process is limited:
[The judiciary cannot] directly intervene and . . . say to the legislature that the legislation it is at work upon is not what it is professed to be and can not be enacted in this way, and that if it is so enacted it will be invalid. . . . [The courts cannot] enter this field of legislation and assume to superintend and control this matter, substitute their judgment for the judgment of the legislature, and say whether the latter may or may not proceed further, and to thus subordinate the legislative to the judicial department . . . .
Id. at 334, 122 P. at 770. Thus, the separation of powers doctrine supports our conclusion that, in the absence of constitutionally or statutorily conferred jurisdiction, courts cannot interfere in the legislative referendum process by reviewing referenda before they have been submitted to the electorate. The General Assembly, in adopting any legislative referendum, has a responsibility to ensure compliance with the limitations imposed by Article XIX, Section 2(3).
IV.
Neither the Colorado Constitution nor any statutes confer upon the courts jurisdiction to review legislative referenda before they are adopted. Moreover, an adequate post-election remedy is available, and the separation of powers doctrine prohibits judicial interference in the legislative process. We therefore hold that we have no jurisdiction to adjudicate the petitioners' claim. Because we hold that the courts do not have jurisdiction to review a referendum before it is adopted, we do not decide whether SCR 95-2 encompasses a single subject.
JUSTICE SCOTT dissents.