Petition for Writ of Certiorari — DeMoulin v. City of Denver

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INDEX

Page

Citations to Opinions Below .............. Nil gel Tats l

EE nicisins3cspeenigbinesle oeniitib ansbnapseeissnolaete Ouse 2

Questions Presented .................0-.cccccecccsccccsessseesecees 2

Constitutional and Charter Provisions ................... 2

SI ~nicscohxnapasinimcseandicnlonanisishdipliadibcisbenisnineedsduedstlanems 2

When Federal Question Raised .............................. m

Reasons for Granting the Writ ~................0.....00....... 5

ARCIMSION ...............00cennccccocccccscnccscnessssnesssersecssronase 6

Appendix A:

Opinion of the Supreme Court of Colorado ...... 7

Appendix B:

Constitutional and Char‘er Provisions ............ 9

Appendix C:

Portions of the Record Showing When Federal

te 9

CASES CITED

Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct.

1897, 23 L.Ed.2d 647 (1969) _....... ee. 4,5

City of Phoenix v. Kolodziejski, 399 U.S. 204,

90 S.Ct. 1990, 26 L.Ed.2d 523 (1970) .......... 4,5

DeMoulin v. City and County of Denver, 495

Pade Oe CRM, TIED wicivicisensctcrnnnedscccennse sone 1,7

Kramer v. Union Free School District, 395

U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583

DIET - -sictinsiinicssinebuidemmadiinbatieeeseniedmaGaminiecaiae 4,5

OSS EON wool

IN THE

Supreme Court of the GQnited States

October Term, 1972

No.

CHARLES J. DEMOULIN, PATRICIA DEMOULIN, JEANNE E.

SHANNON, BARBARA A. RUTHERFORD, SALLY SNELLING,

WAYNE KNOX, VIRGINIA KUHN, and WILLEY SMITH,

Petitioners,

VS.

THE CITY AND COUNTY OF DENVER, a body politic and cor-

porate; PUBLIC SERVICE COMPANY OF COLORADO, a Colo-

rado corporation; and JAMES T. BAYER, F. JAMES Voss,

and F. J. SERAFINI, election commissioners for THE CITY

AND COUNTY OF DENVER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

The petitioners pray that a writ of certiorari issue to re-

view the judgment of the Supreme Court of Colorado en-

tered in this case on April 17, 1972.

Citations to Opinions Below

The opinion of the Supreme Court of Colorado is De-

Moulin v. City and County of Denver, 495 P.2d 203 (Colo.

1972). As yet the opinion has not been printed in the offi-

cial Colorado Reports. A copy of this opinion is printed in

Appendix A.

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Jurisdiction

The opinion of the Supreme Court of Colorado was dated

January 24, 1972. Judgment was entered and rehearing was

denied on April 17, 1972. No order granting any extension

of time within which to petition for writ of certiorari has

been entered. The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(2).

Question Presented

Whether the City and County of Denver may constitu-

tionally deny qualified electors who have not paid a prop-

erty tax the right to vote on the question of granting a fran-

chise to the Public Service Company of Colorado, in the ab-

sence of proof that the result of the election could have been

different if all the electors who were not allowed to vote on

the question of the franchise had been permitted to do so.

Constitutional and Charter Provisions

The provision of the United States Constitution that is in-

volved is the equal protection clause of the Fourteenth

Amendment. The provision of the Colorado Constitution

that is involved is Art. XX §4. The provision of the Charter

of the City and County of Denver that is involved is Denver

Charter §C3.1. These constitutional and charter provisions

are printed in Appendix B.

Statement

The petitioners are qualified electors of the City and

County of Denver who owned no real estate and who, there-

fore, had paid no property tax to the City and County of

Denver. Because the petitioners had paid no property tax,

the City and County of Denver prohibited them from voting

in a special election held on February 7, 1967 on the ques-

ARCS p OIA ta EMT TEPID SOREN OETA ern 2AM rT? ore vi

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tion of whether the City and County would grant the Public

Service Company of Colorado a 20-year franchise to use the

public streets for the distribution of electricity, gas, and

steam.

The Public Service Company of Colorado won the elec-

tion by a vote of 66,566 to 10,035.

At the time of the election, 204,687 citizens were regis-

tered voters in the City and County of Denver. Of these

204,687 electors, 91,691 voted in the election. Of the

91,691 electors who voted, only 76,601 voted on the ques-

tion of the Public Service Company franchise, 66,566 for it

and 10,035 against it. Thus 15,090 electors were allowed to

vote on the other propositions that were on the same ballot

but not on the question of the Public Service Company fran-

chise; these 15,090 electors presumably were not property

taxpayers.

Before the election, the Public Service Company con-

ducted a massive newspaper, radio, television, and door-to-

door advertising campaign telling the electors that they had

no right to vote if they were not property taxpayers. This in-

tense publicity blanketed the City and County of Denver for

several weeks.

On March 14, 1967, the petitioners filed a class action in

the District Court for the City and County of Denver to void

the election and to salvage their right to vote. On March 19,

1969, the trial court dismissed the petitioners’ complaint.

The petitioners perfected their writ of error to the Supreme

Court of Colorado; the Supreme Court of Colorado af-

firmed the trial court. In its opinion dated January 24,

1972, the Supreme Court of Colorado stated:

The trial court ruled . . . that relief of voiding the

. election could not be granted Secause there was

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no allegation and showing that, absent the illegal-

ity, the result would have been otherwise.

We agree with this latter ruling, except that the

allegation and showing need only be that the re-

sult could have been, and not would have been,

otherwise .. . If the 15,090 who were not allowed

to vote on the franchise had been permitted to do

xo, and all had voted against it, the franchise

would still have been approved. [Italics by the

Court. |

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Meanwhile, the Supreme Court of the United States had

decided Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct.

1897, 23 L.Ed.2d 647 on June 16, 1969, Kramer v, Union

Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23

LB. 2d S83 on June 16, 1969, and City of Phoenix v. Ko-

lodziejski, 399 U.S. 204, 90 $.Ct. 1990, 26 L.Ed.2d 523 on

June 23, 1970. These cases held that the equal protection

clause of the Fourteenth Amendment forbids states to dis-

criminate between electors who have paid property taxes

and electors who have paid no property taxes. The Supreme

Court of Colorado, citing Cipriano and Kramer but not Ko-

lod iejskt. held that Cipriano and Kramer were not control-

ling because the petitioners had not proven that the outcome

of the election could have been different if the City and

County of Denver had not prohibited electors who had paid

ho property tax from voting. Thus the Colorado Supreme

Court said that a city can deny electors who have paid no

; property tax the right to vote in all elections, except when

~ such electors are able to go to court and prove that the re-

sult of the election could have been different if the city had

not denied them the right to vote. The Supreme Court of the

United States recognized no such limitation on the equal

protection clause or on the right to vote in either Cipriano,

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Kramer, or Kolodziejski; no language in either Cipriano,

Kramer, or Kolodziejski even faintly suggested that the

equal protection clause applies or that the right to vote ex-

ists only if someone can prove that his side could have won

the election. The effects of the decision of the Supreme

Court of Colorado, if upheld, are that 15,090 or more elec-

tors lost their right to vote on the Public Service Company

franchise and that these voters will not have an opportunity

to vote again on this question until Public Service Company

franchise expires in 1987.

When Federal Question Raised

The petitioners raised the federal question in their com-

pleint filed in the District Court for the City and County of

Denver, State of Colorado, on March 14, 1967 and subse-

quently in their amended complaint and motion for new

trial filed in the District Court for the City and County of

Denver, State of Colorado, and again in their brief filed in

the Supreme Court of Colorado.

Reasons for Granting Writ

This petition for writ of certiorari presents a substantial

question of federal constitutional law not explicitly decided

in Cipriano, Kramer, or Kolodziejski. The Supreme Court

of Colorado in deciding this federal question read a new

meaning into the equal protection clause by holding that

propertyless electors have no right to vote unless they come

into court after the election and establish that their ballots

would have made a difference in the outcome. In principle,

it is the same as if the City and County of Denver had said

that 15,090 Negroes would be allowed to vote only if they

could subsequently prove in court that their votes could

have changed the result.

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Conclusion

For the foregoing reasons, the petition for writ of certior-

; ari should be granted.

Respectfully submitted,

JOHN S. CARROLL

REBECCA L. BRADLEY

CARROLL & BRADLEY, P.C.

61 West 84th Avenue

Denver, Colorado 80221

Counsel for Petitioners

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APPENDIX A

Opinion of the Supreme Court of Colorado in DeMoulin

v. City and County of Denver, 495 P.2d 203 (Colo. 1972):

GROVES, Justice.

The parties appear here in the same order as in the trial

court. The plaintiffs sought to void a special election held

on February 7, 1967. There a 20-year franchise was

granted to Public Service Company of Colorado for use of

the Denver city streets and public ways for the distribution

of electricity, gas and steam. Trial was to the court, which,

at the conclusion, dismissed the complaint. We affirm.

Colo. Const. art. XX, § 4 and Denver Charter § C3.1 de-

scribe the proper electorate for such an election as “quali-

fied taxpaying electors.” Only those who had paid a prop-

erty tax to the City and County of Denver during the twelve

months preceding the election were permitted to vote upon

the franchise. Registered, non-taxpaying voters were permit-

ted to vote upon other propositions on the ballot. There

were 204,687 registered voters. Of these, 91,691 voted at

the special election. There were 76,601 who voted as to the

franchise matter and, presumably, the remaining 15,090

were not permitted to vote on that question. The franchise

was approved by a vote of 66,566 to 10,035, with 56,531

more “for” votes than those “against.”

The plaintiffs contend that the denial of the right to vote

on the franchise by non-taxpaying electors is a denial of

equal protection under the Fourteenth Amendment. While

we do not reach the question, it is noted in passing that Cip-

riano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23

L.Ed.2d 647 (1969), and Kramer v. Union Free School

District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583

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(1969), which are cited here in support of reversal, were

announced subsequent both to the election and the trial

court's determination.

The trial court ruled that Denver's election commission

improperly defined the term “qualified taxpaying electors.”

It held, nevertheless, that relief of voting the election could

not be granted because there was no allegation and showing

that. absent the illegality, the result would have been other-

wise.

We agree with this latter ruling, except that the allegation

and showing need only be that the result could have been,

and not would have been, otherwise. Suttle v. Sullivan, 131

Colo. 519, 283 P.2d 636 (1955); Clough v. Colorado

Springs, 70 Colo. 87, 197 P. 896 (1921); City of Loveland

v. Western Light and Power Company, 65 Colo. 55, 173 P.

717 (1918); and Todd v. Stewart, 14 Colo. 286, 23 P. 426

(1890). If the 15,090 who were not allowed to vote on the

franchise had been permitted to do so, and all had voted

against it, the franchise would still have been approved.

The plaintiffs have argued that advance advertising to the

effect that non-taxpaying electors could not vote on the

franchise caused many non-taxpayers to fail to go to the

polls. These non-voters, they say, might have appeared and

defeated the franchise. No showing was made as to how

many of the registered voters were not taxpayers; nor was

there any evidence that any persons were discouraged from

voting by reason of the advance advertising. To be success-

ful. plaintiffs would have to predicate their case upon these

showings.

The plaintiffs contend that there was a stipulation be-

tween the parties, which eliminated the necessity for plain-

tiffs to show that the vote could have been different. Both in

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their brief and in oral argument the plaintiffs referred to

many folio numbers in the record at which such a stipula-

tion could be found. We fail to find any such stipulation at

the folio references or in the remainder of the record.

Judgment affirmed.

APPENDIX B

Constitutional and Charter Provisions:

(1) U.S. Const. amend. 14: “... nor shall any

State . . . deny to any person within its jurisdiction the equal

protection of the laws.”

(2) Colo. Const. Art. XX §4: “No franchise relating to

any street, alley or public place of said city and county [of

Denver] shall be granted except upon the vote of the quali-

fied taxpaying electors . . .”

(3) Charter of the City and County of Denver § C3.1:

“No franchise relating to any street, alley or public place of

the city and county [of Denver] shall be granted except

upon the vote of the qualified taxpaying electors . . .”

APPENDIX C

Portions of the Record Showing When Federal Questions

Raised:

(1) Complaint filed in the District Court for the City

and County of Denver, State of Colorado, on March 14,

1967:

THIRD CLAIM FOR RELIEF ...

2. If the Court determines “qualified taxpaying

elector” as used in the Colorado Constitution, Ar-

a

—_ i

ticle Twenty (20), Section Four (4) pertaining

to franchise elections means only those qualified

electors who paid an ad valorem tax in the twelve

f months next preceding the election, then that

‘ Colorado Constitutional requirement must fall as

being in violation of the Fourteenth (14th)

Amendment to the United States Constitution.

: (2) Amended complaint filed in the District Court for

the City and County of Denver, State of Colorado, on Sep-

tember 11, 1967:

. .» SECOND CLAIM FOR RELIEF ...

I

If the Court determines that the phrase “quali-

fied taxpaying elector” as used in Art. III §C3.1

of the CHARTER OF THE CITY AND

COUNTY OF DENVER and Art. XX §4 of the

Colorado Constitution means only qualified elec-

tors who have paid an ad valorem tax to the

CITY AND COUNTY OF DENVER within the

twelve months immediately preceding the elec-

tion, then Art. III §C3.1 of the CHARTER OF

THE CITY AND COUNTY OF DENVER and

Art. XX §4 of the Colorado Constitution must

fall because they contravéne ... the Fourteenth

Amendment to the United States Constitution.

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(3) Motion for new trial filed in the District Court for

the City and County of Denver on March 31, 1969:

(3) The Court erred in refusing to enjoin the de-

fendant City and County of Denver from issuing

a franchise to the defendant Public Service Com-

pany of Colorado until the defendant City and

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County of Denver holds a valid election on the

issue of such franchise in which all persons legally

entitled to vote on said issue are permitted to do

Riek.

(6) The Court erred in holding that the Court

does not have the power or authority to annul or

declare void an election except on a showing that

said election was illegally conducted and that as a

result of said illegality the true will of the major-

ity was not expressed and that but for such al-

leged illegality the result of the elction [sic]

would have been otherwise.

(7) The Court erred in holding that it was neces-

sary for the plaintiffs to allege and prove that the

size of the class they represented was large

enough to affect the results of the franchise elec-

tion if the class had been permitted to vote.

(8) The Court erred in holding that it did not

have the power to provide any remedy for the dis-

enfranchised voters in the absence of proof by

the plaintiffs that if the election were held again

the result would be different.

(4) Brief of the plaintiffs in error filed in the Supreme

Court of Colorado on November 14, 1969:

Il. SUMMARY OF ARGUMENT.

A. Did the defendants’ restriction of the right to

vote to property taxpayers deny the plaintiffs and

other nonproperty taxpayers the equal protection

of the law guaranteed by the U.S. Const. amend.

14...?

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C. Must the plaintiffs, in order to secure their

right to vote, be able to establish after the election

that their votes would have changed the outcome?

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