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HomeMy WebLinkAbout1989-12-01 EC AGENDAENGLEWOOD ELECTION COMMISSION December 1, 1989 Conference Room A -4:30 p.m. I Call to order -Chairman Kollath II Roll call -Lou Ellis III Notice of Special Election date -Pat Crow A. Discussion of number of polling places and other matters concerning the upcoming election, i.e. voting by paper or machine IV Report by Pat Crow concerning matters leading to Mr. Haidon's protest regarding residency requirements for Council membership as requested by Chairman Kollath V Discussion with City Attorney DeWitt concerning election matters VI Commission Member's Choice VII Adjournment COW A.."i v. CITY OF ASPEN Cite~'· Culu., j()9 P.:?d ]~69 Colo. 1269 with the skis and their possession o f them when app rehended . Defendants' explana- tions were heard by the jury, and their theory of the case that the episode was in- tended only as a prank was giYen to the jury by appropriate instructions. T h e jury did no t accept the explanations and could infrr from the circumstance s that, had they not been o\·ertaken and the skis recoYered , they intended to and would haYe deprind the owner permanently of the property. As we said in Dodge \', People, 168 Co lo. 531, 45 2 P.2d 159: "As to th e issue of whether the e\·i- dence is sufficient in fact to sustain de- fendant's conviction, we reiterat e these establ ishe d rules: the eYidence, with rea- sona bl e inferen ces therefrom, must be viewed in the light most fayorabl e to the jury 's \·erd ict; the jury is assumed to haYe adopted that ev ide nce which sup - ports its verdict; and , the jury having fou n d the guilt of the accused prov ed be - yond a reasonable dou bt , this cou rt will ne ither weigh the evidence nor appraise the credibility of witnesses. * • * " Defendants additionally assert erro r by the trial court (a) in gh·ing in struction ~o. 8 on circumstantial nidence without limit ing it to the issue of ·'spe cific intent": (b) in gi\·ing instruction Xo. 14-a sepa- rate one dealing with the credibility of de- fendants as witnesses; and (c) in adminis- tering a strong rebuke to defense counsel in the prese nce of the jury. [2) Although we consider ins truction !':o. 8 to haYe been en ti rel y proper, as we note defendant did not oLject to the in- struction, offer a substitute, or include the asserted ground in his motion for new trial. Consequently , we will not consider it for the first time here. ~lingo v. People, 171 Colo. 4/-l, 468 P.2d S-19; J\!aes , .. Peo- ple, 169 Colo . 200, 454 P.2d /92. [ 3) The giving of instruction !\ o. 14 was not reYersible error, although we have heretofore made it known that the better procedure is to giYe only the one integrat- ed credibility instruction. Sec Hinton ,., People, 169 Colo. 545, 4~8 P .2 d 611. Colt .R•p . 50b-509 P.2d-)0 [4) In reference to the alleged preju- dice stemming from the court's "d r essing down" of counsel, we note that the court was attempting to expedite the trial and impartially reprimanded and rebuked coun- sel on Loth sides with like severity for in- ordinate delay. The court's remarks were not on the merits of the case, nor did they relate to counsel's conduct of the trial, but dealt only with defense counsel's unauthor- ized excusing two w itnesses from attend- ance on the first day and the consequent necessi ty of adjourn in g trial to the next day. Counsel apologized to the court; the court accepted and recessed the case. The matter was resoh·ed , and during the fol- lowing day 's proceedings neither the court nor counsel appeared to be further affected by the in cident. Counsel d id not move for a mistrial, nor mention the matter in the motion for a new trial. ~ o prejudice has been shown, and none is detected from a reading of the record. The judgment is affirmed . ERICKSOX, J., does not participate. w~----.. 0 ~U T ·~,..U t snH" T Jay COWAN et al., Plaintiffs-Appellees, v. The CITY OF ASPEN, a Colorado municipal corporation, et al., Defendants- Appellants. No. 25995. Supreme Court of Colornuo, En Bnne. :'\lay 3 , 19i3. Prospective candidate for mayor and prospective candidates for seats on city council filed complaint for declaratory judgment as to Yalidity of three-year dura- tional residency city charter requirement for municipal candidates and for relief in nature of mandamus. The District Court, 1270 Colo. 509 PACIFIC REPORTER, 2d SERIES P itkin County, Charles F. Stewart, J ., de- clared the three-y ear residency requirement in\'alid and ordered clerk to certify can- didacy of plaintiffs, and city was granted immed iate re\'iew. The Supreme Court, Hodges, J ., he ld that three-year durational res idency requ irement denied equal protec- tion, in that no compell ing state interest was shown for requirement. In add ition, the Court h eld that statutory one-year dura- tional residency requirements for candi- dates for municipal office was constitu- tional. Judgment affi rmed. Day, J ., d id not participate. I. Appeal and Error G=>840(3) Although statutory one-year durational residency requirement for munici p al candi- dates was not challenged on appeal from judgment striking down three-year dura- tional res idency charter requirement, re- viewing court would determine consti tu- tionality of statutory requirement where, under charter, statutory qualifications be- came operati \'e on declarati on of im·alidity of charter residency requirements. U.S.C. A.Const. Amend. 14; 1965 Perm .Supp., C. RS., 49-23-20. 2. Constitutional Law G=>21 I To withstand equal protection chal- lenge, a durational residency requirement for public oifice must be shown to be n~c­ essary to promote a compelling goYernmen- tal interest ; such showing must be made by the gonrnmental unit seeking to uphold the requirement. U .S .C.A.Const. Amend. 14. 3. Officers G=>l8 Right t o hold public office, by either appointment or election, i s one of the \'alu- able and fundamental rights of citizenship; this right may not be infringed on by in- vidious discriminatory qualifications. U. S .C.A.Const. Amend. 14. 4. Officers ~18 Any prescribed q1Jalification for hold- ing of public office must have a reasonable relation to the object sought to be accom- plished by imposition of the qualification. U.S .C.A .Const. Amend. 14. 5. Constitutional Law ~211 Assertion that three-year durational residency charter requirement for candida- cy for mayor and councilmen was of im- portance in assuring candidates of high quality and would assure that candidates he well acqua inted with i ssues and problems of city and mechanics of resolving prob- lems and that requirement would tend to prevent friYolous candidacy by persons having little interest in conditions and needs of city and that longe\'ity of res i- dence would generally insure that an indi- vidual would ha\'e greater contact with other members of community fell short of clear and preci se show ing necessary to up- hold requirement against equal protection challenge. U.S.C.:\.Const. Amend. 14 . 6. Municipal Corporations ~138 Compell i ng governmental interest test , as appl i ed to durational residency require- ments for city office, requires that reasons for making decis ion for the voters as to who shall be qualified to run for public of- fice must be real, clear and compelling. U.S.C.A.Const .. ~mend. 14 . 7. Constitutional Law G=>21 I Three-year durational res idency city charter requirement for candidacy for mayor and city councilmen was unconstitu- tional as \'iolati\'e of equal protection guar- antee. U .S.C..~.Const. :\mend. 14. 8. Constitutional Law ~211 M unlclpal Corporations ~ 124(3) Statutory one-year durational residen- cy requirement for candidacy for municipal office is constitutional; expression of state policy sufficiently complies with compel- ling go\'ernmental interest so as to with- stand equal protection attack. U.S.C.A. Const. Amend. 14; 1965 Perm.Supp., C.R. s .. 49-25-20. J. D. Muller, Aspen, for plaintiffs-appel- lees. Holland & ver, for dei en HODGES, The primar er the trial c< the three-year requirement f council man o l \'iolation of tl: the Fourteent States Constit The contro,· cus a seconda1 statute requir. candidates for tionally ,·alid . [l) On the the trial cour unconst itutiom residency req1 therefore aiiii sue, we find durational res i for munici pal in this appeal, and expedient issue . Th i s is the chart e r ret in\'alid, the mu and councilmai matically Leco1 durational re! hold that the s id. Plaintiff Co" placed on the c for mayor of .: era! ?\lunicipal 19i3. The oth · their names pu1 for councilman. been a resident but not three : mission of the certify the cand cause they had for a period of with :\rticle 11 . .e • I COW AN v. CITY OF ASPEN Cit<' u~. Cvlo., 500 P .~d l~G!l Colo. 12il Holland & Hart, :\rthur C. Daily, Dtn- Yer, for defendants-appellants. HODGES, Justice. The primary issue in this case is wheth- er the tr ial court was correct in declaring the three-year durational residency charter requirement for candidates for mayor and councilman of the City of Aspen to be in Yiolation of the Equal Protection Clause of the Fourteenth Amendment of the Cnited States Constitution. The contronrsy here also brings into fo- cus a secondary is sue of whether the State statute requiring one-year's residence for candidates for municipal oifice is constitu- tionally ,·alid . Rule Charter of the City of .-\spen which pro,·i des in part: ''Each councilman and the mayor when nom inated and elected shall Le an elector of the City, a citizen of the Cnited States for at least three years, a11d shall ha<:c 1·esided in the City fo1· th,.cc conti11- 11011s yeal's immediately p1·eccdi11g such rlcctio11 (Emphasis added.) Article JI of this Charter pro\'ides in Sec- tion 2.1 as follows: "City elections shall be go,·erned by the Colorado :\Iunicipal Election Laws as now existing or hereafter amended or modified except as otl1C1-.;.·isc f'l'O<:i ded b)' this Cha1 ·tcr, or by ordinance hereafter enacted." t.Emphasis added.) It is to be noted that upon the declara- (1) On the primary issue, we hold that tion of innlidity of the three-year dura- the trial court's j udgment innlidating as unconstitutional the three-year durational residency requirement is correct and we therefore aifirm. As to the secondary is- sue, we find that, although the one-year durational res idency statutory requirement for municipal candidates is not challenged in this appeal, it is, ne,·ertheless , necessary and exped ient at this time to resoh·e this issue . Th is is so because in th is case when the cha.rt er r equirement is struck down as in\'a)id, the municipal candidates for mayor and councilman of the City of Aspen auto- matically become subject to the statutory durational residency requirement. \ \' e hold that the stat11tory requirement is Yal- id. Plaintiff Cowan sought to have his name placed on the official ballot as a candidate for mayor of Aspen, Colorado in the Gen- eral :'llunicipal Election to be held :\lay 8, 1973. The other plaintiffs sought to ha\'e their names put on the ballot as candidates for councilman. Each of the plaintiffs had Leen a resident of Aspen for over one year hut not three years. The Election Com- mission of the City of Aspen refused to certify the candidacy of these plaintiffs Le- cause thry had not Leen residents of .-\spen for a period of three years in accordance with :\rticle ]JI , Sect ion 3.3 of the Home tional residency requirement, the foregoing provision of the Aspen Home Rule Charter would haYe the effect of making operative the Colorado :\Iunicipal Election Code as to required res idency. The stat 11 tory durational residency re- quirement for municipal candidates i s set forth in the Colorado :\I unicipal Election Code, 1965 Perm.Supp., C.R .S.1963, -49-23- 20, as amended by the Sess ion La w s of 1972, Chapter 36, Section 39 at 313, and pro\'ides as follows : "Electo1 ·s eligible to hold m1111icipal of- fice. EYery qua Ii iied elector eighteen years of age or older on the date of the election may Le a candidate and hold of- fice in any municipal ity unless another age is required by local charter or ordi- nance, proYided he has resided in the municipality or municipality and ward, as the case may be, from which he is to be elected for a period of at least tu.•eZ..e co11sec11ti<'e months immediately p1·eced- i11g the date of the c/.ceti on. (Emphasis lidded.) Jn the trial court, the plaintiifs filed a complaint for declaratory judgment and for relief in the nature of mandamus. On the hasis of stipulated facts, the tr:al court on .\pril .2-t, 197 3 entered its jud~ment de- I •I 1272 Colo. 509 PACIFIC REPORTER, 2d SERIES claring the three-year durational residency requirement im·alid and ordering the City Clerk of Aspen to certify the candidacy of the plaintiffs and ca11se their names to be placed on the ofiicial \Jallot of the City of Aspen for the General Election of ::'l!ay 8, 1973. The City sought and we haYe agreed to afford an immed iate re\·iew and final adjudication in connection with the trial court's judgment under 1965 Perm. Supp., C.R.S.1963, 49-23-13,=i, a proYision of the :'.\Iunicipal Election Code. I. (2) Recently, in Bird \'. Colorado Springs, Colo., ,=iOi P.2d 1099 (1973), we held that a fiYe-year durational residency requirement for mayor or councilman can- didates is unconstitutional. In support of this holding, we cited :'.\JcKinney \'. Kamin- sky, 340 F.Supp. 289 (:'.\l.D .Ala.197.2) and Zeilenga \'. ::\'elson, 4 Cal.3d 716, 94 Cal. Rptr. 6112, 484 P.2d 578 (1971). In both of these cited cases, a fiYe-year durational residency requirement to be a candidate for public office was held to be unreasona- bly discriminatory and therefore in Yiola- tion of the Equal Protection Clause of the Fourteenth Amendment of the L"nited States Constit11tion . Also, both of these cited cases follow the rule that to be Yalid, a durational residency requirement must lie necessary in order to promote a compelling governmental interest, and that such a showing must be made by the goYernmen- tal unit seeking to uphold the requirement. Bird v. Colorado Springs, supra, did, in ef- fect, therefore adopt the rule of the cases it cited and we herein specifically hold that this is a \·alid and proper principle of law for application when a durational residency requirement for candidates is challenged. Jn Camara v. :.Iellon, 4 Cal.3d 714, 94 Cal. Rptr. 601, 484 P.2d 5ii (1971), a three- year durational residency requirement to be a member of the City Council of Santa Cruz, California was held to be unconstitu- tional for the same reasons as expressed in Zeilenga \'.Kelson, supra. (3, 4) There must be a present and compelling goYernmental interest to j11sti fy a durational residency requirement because the right to hold pu\Jlic office, by either appointment or election, is one of the \'alu- able and fundamental rights of citizenship. This right may not be infringed upon Ly im·idious discriminatory disqualifications. :\ny prescribed qualification for the hold- ing of a public office must haYe a reason- able relation to the object sought to be ac- complished Ly the imposition of the qualifi- cation. Sec Landes v. Town of ::\'orth Hempstead, 20 ::\'.Y.2d 417, 284 X.Y.S.2d 441, 231X.E.2d120 (1967). Here, the trial court could not detect any compelling go\'ernmental interest in the three-year residency requirement, and it also found that the City failed to show any such compelling goYernmental interest. It is argued on behalf of the City that the three-year residency requirement is of im- portance in assuring a mayor and council of high quality and it will insure that may- or and councilman candidates will be well acquainted with the issues and problems of the City of A.spen and with the mechanics for resoh·ing these problems. It was also stated on behalf of the City that this re- qu;rement would tend to preYent friYolous candidacies by persons who han little in- terest in the conditions and needs of the City of Aspen. Longe\'ity of residence is said to generally insure that an indiYidual would haYe greater contact with other mem\Jers of the community and would therefore, presumably, lie in a better posi- tion to administer. the needs of the commu- nity as a public officer. (5, 6) Jn our \'iew, the foregoing argu- ments to justify a compelling governmental interest fall far short of a clear and pre- cise showing by the City that three years of residency as opposed to one-year of res- idence will tend to enable a candidate for mayor or councilman in Aspen to be a more qualified candidate. As stated in Zeilenga v. !\el son, s11pra, it is often diffi- cult to draw the line between basic needs of the office w· the \'Oters by c the indi\·idual i must be left to voting is to mt ling governme· that the reason the \'Otc:rs as t run for public and compellin1 three-year resi< in this case, af1 found to be rea complishment objecti\'e and 1 constitutional Carter, 405 C.: Ed.2d 92 (1972) A durational two years for 1 in Green \'. :.: Cir. 19i2) and Supp. 698 (D. residency requi commission wa! (7) For the fore, we hold t' al residency rec the office of m pen as set for tl of Aspen's Hor. tutional as a \'i ' tion Clause of of the l..'nited s· (8) Becaus.c Election Code for a . one-yc:a quirement for Perm.Supp., amended by tl Chapter 56, Sc view, that any pu t to justify a exces s of one legislative enac absence of cle1 to the contra r ~o~ P .2c1-ao1 JOHNSON v. SALAZ Colo. 1273 Cit~ a•. Colo .App .. 500 P.2d 1273 of the office which may be determined for policy s11fiicicntly complies with the com- the voters by candidacy requirements, and pelling goYernmental interest test. the indiYidual iitness of a candidat e which Judgment affirmed. must be left to the choice of the \'Oter if voting is to mean anything. The compel- ling go\·ernmental in terest test requires that the reason for making a decision for the voters as to who shall be qual ifi ed to run for public office must be real, clear and compelli ng. In other words, the three-year residency requirement im·oh·ed in this case , after close scrutiny, cannot be found to be reasonably necessary to the ac- compl ishmen t of a legit imat e municipal objective and therefore, it does not pass constitutional muster. See Bullock "· Carter, 405 l.:.S. 134, 92 S.Ct. 849, 31 L. Ed.2d 92 (19/2). A durational residency requirement of two years for city council was inYalidate d in Green \'. :'.\IcKeon, -168 F.2d 883 (6 th Cir. 1972) and in ?lfogk "· Detroit, 335 F. Supp. 698 (D .C.:'.\lich.19/1), a three-year residency requirement for charter reYision commission was declared im·alid. [7] For the reasons set forth hereto- fore, we hold that the three-year dnration- al residency requirement for candidates for the office o f mayor and councilman of .~s­ pen as set forth in Article Ill, Section 3.5 of Aspen's Home Rule Charter is unconsti- tutional as a Yiolation of the Equal Protec- t ion Clause of the Fourteenth Amendment of the l.:nited States Constitution. JI. [8) Because of Colorado's :'.\I unicipal Election Code which specifically provides for a. one-year durational residency re- quirement for municipal candidates ( 1965 Perm.Supp., C.R.S.1963, 49-23-20, as amended by the Session Laws of 19/2, Chapter 56, Section 39 at 313), it is our view, that any municipality would be hard put to justify any residency requirement in excess of one year. \\'ith respect to this legislative enactment, we hold that, in the absence of clear and convincing evidence to the contrary, this expression of state ~09 P.26-&0>'• DAY, J., does not participate. . ..__ ___ _ 0 ~ UT •UMlll m1°V" T Cecil JOHNSON, Plalntiff-Appellee, v. Isaac L. SALAZ, Defendant-Appellant. No. 72-146. Colorndo Court of Appenls, DiY. II. :'IIny s. 19';'3. ='ot ~eleC'ted for Official Publication. Action to reco\'er for death of plain- tiff's minor son who was killed, while rid- ing in a11tomobile owned and drh·en by de- fendant, when automobile was struck by truck as defendant droYe automobile into through street without stopping at stop sign. The District Court, C ity and County of DenYer, Joseph ~. Lilly, J., entered judgment for plaintiff, and defendant ap- pealed. The Court of Appeals, Dwyer, }., held that issue whether son's advice and assistance to defendant, in regard to his determination as to places of employment at which he should seek work, conferred on defendant a real, tangible and material benefit so as to sen·e as inducing cause for transportation of son and render guest statute inapplicable was for jury. The court further held that issue as to whether defendant, who asserted that he was lost and unfamiliar with area and did not sec stop sign but who was aware that he was not on a through street and had encoun- tered other intersections controlled by stop signs, was guilty of willful and wanton negligence was also for jury. Judgment affirmed.