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Adams v. Sagee

Court of Appeals of Colorado, Seventh Division

October 19, 2017

Harley Adams; Ernest Vigil; and Phyllis Vigil, Plaintiffs-Appellants,
v.
Arlene Sagee, in her official capacity as the Sheridan City Clerk; Devin Granberry, in his official capacity as the Sheridan City Manager; Dallas Hall, in his official capacity as the Mayor of Sheridan and a member of the City Council; Tara Beiter-Fluhr, in her official capacity as the Mayor Pro Tem of Sheridan and a member of the City Council; David Black, in his official capacity as a member of the Sheridan City Council; Ernie Camacho, in his official capacity as a member of the Sheridan City Council; Sally Daigle, in her official capacity as a member of the Sheridan City Council; Leon Hartness, in his official capacity as a member of the Sheridan City Council; and Gary Howard, in his official capacity as a member of the Sheridan City Council, Defendants-Appellees.

         Arapahoe County District Court No. 16CV173 Honorable Phillip L. Douglass, Judge

          Cheney Galluzzi & Howard, LLC, Kevin B. Cheney, Timothy C. Galluzzi, Denver, Colorado, for Plaintiffs-Appellants

          The Law Office of Steven J. Dawes, LLC, Steven J. Dawes, Denver, Colorado, for Defendants-Appellees

          OPINION

          J. JONES JUDGE

          ¶ 1 This case presents one question: Did the district court unconstitutionally apply a filing deadline to this case, which involves citizens pursuing their constitutional right of initiative? We answer no, and so we affirm the district court's dismissal of the complaint.

         I. Background

         ¶ 2 Plaintiffs Harley Adams, Ernest Vigil, and Phyllis Vigil petitioned to present a ballot initiative to the residents of Sheridan. For various reasons, Sheridan's City Clerk rejected some of the signatures plaintiffs had collected. That left plaintiffs short of the required number of signatures for the Sheridan City Council and Sheridan voters to consider the initiative. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing.

         ¶ 3 Thirty-five days after the City Clerk's final decision, plaintiffs filed a complaint in district court against the City Clerk, the City Manager, the Mayor, and the members of the City Council (collectively, Sheridan) pursuant to section 31-11-110(3), C.R.S. 2017 ("The determination as to petition sufficiency may be reviewed by the district court for the county in which such municipality or portion thereof is located upon application of the protester, [or] the persons designated as representing the petition proponents pursuant to section 31-11-106(2)."). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs had failed to file the case within the twenty-eight-day time limit of C.R.C.P. 106, the rule which is plaintiffs' only avenue for judicial review of the decision they challenge.[1]

         II. Discussion

         ¶ 4 Plaintiffs concede that Rule 106(b)'s twenty-eight-day jurisdictional bar applies, and that they filed their case thirty-five days after the relevant final decision. But they argue that the district court's strict application of the twenty-eight-day time limit to them as pro se parties pursuing their constitutional right of initiative deprived them of that right. Put another way, they argue that Rule 106(b) is unconstitutional as applied to their circumstances. Their argument fails.

         A. Standard of Review

         ¶ 5 We review challenges to the constitutionality of statutes and rules, including as-applied challenges, de novo. Hickman v. Catholic Health Initiatives, 2013 COA 129, ¶ 6; see also Turney v. Civil Serv. Comm'n, 222 P.3d 343, 347 (Colo.App. 2009) (reviewing a void for vagueness challenge to an administrative rule de novo).

         B. As-Applied Unconstitutionality

         ¶ 6 When asserting an as-applied challenge, the party "contends that the statute would be unconstitutional under the circumstances in which the [party] has acted or proposes to act." Sanger v.Dennis, 148 P.3d 404, 410-11 (Colo.App. 2006) (citation omitted); see also Developmental Pathways v. Ritter, 178 P.3d 524, 534 (Colo. 2008). "The practical effect of holding a statute unconstitutional as applied is to prevent its future application in a similar context, but not ...


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