Harley Adams; Ernest Vigil; and Phyllis Vigil, Plaintiffs-Appellants,
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.
County District Court No. 16CV173 Honorable Phillip L.
Galluzzi & Howard, LLC, Kevin B. Cheney, Timothy C.
Galluzzi, Denver, Colorado, for Plaintiffs-Appellants
Law Office of Steven J. Dawes, LLC, Steven J. Dawes, Denver,
Colorado, for Defendants-Appellees
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.
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
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.
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.
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).
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 ...