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Campbell v. Meyer, 883 P.2d 617


Client/Matter: TABOR
Content Type
Cases

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Court: Colorado

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Campbell v. Meyer
Court of Appeals of Colorado, Division Two
September 22, 1994, Decided
No. 93CA1565
Reporter
883 P.2d 617; 1994 Colo. App. LEXIS 288; 18 BTR 1608

Douglas Campbell, Clyde Harkins, and Douglas Bruce,


Plaintiffs-Appellants and Cross-Appellees, v. Natlie
Meyer, in her official capacity as Secretary of State of
the State of Colorado, and the State of Colorado,
Defendants-Appellees and Cross-Appellants.
Subsequent History: [**1] Released for Publication
November 15, 1994.
Prior History: Appeal from the District Court of the City
and County of Denver. Honorable John H. McMullen,
Judge. No. 93CV4343
Disposition: APPEAL DISMISSED

Core Terms
ballot title, moot, voters, election, issues, fiscal year,
cross-appeal, summary judgment, violates, general
election, appellate court, capital letters, ballot measure,
legal effect, trial court, first full, plaintiffs', defeated,
grounds, printed, subsidy, tourism, dollar

Case Summary
Procedural Posture
Plaintiff taxpayers appealed an order of the District
Court of the City and County of Denver (Colorado),
which granted summary judgment to defendants, state
and secretary of state, on the taxpayers' suit alleging
that the ballot title for Colo. House Bill 93-1330 was
improper and that Colo. House Bill 93-1330 was
unconstitutional. The state cross-appealed a summary
judgment for plaintiff requiring the entire ballot to be
capitalized.

The legislature then passed, subject to voter approval,


Colo. House Bill 93-1330, which provided for a tourism
subsidy tax. The taxpayers sued defendants, arguing
that Colo. House Bill 93-1330 violated TABOR and thus
was unconstitutional, that the ballot title for Colo. House
Bill 93-1330 was improper, and that the ballot title
violated TABOR because it was not printed in capital
letters. The voters defeated Colo. House Bill 93-1330,
and the trial court granted summary judgment to
defendants on the taxpayers' claims that Colo. R. House
Bill 93-1330 was unconstitutional and that the ballot title
was improper. However, the trial court granted summary
judgment to the taxpayers on their claim alleging that
the entire ballot should have been capitalized. The
court dismissed the parties' cross-appeals as moot
because the voters defeated Colo. House Bill 93-1330.
Because the voters did not approve the measure, there
was no existing controversy and a determination of the
substantive issues presented would have had no
practical legal effect.
Outcome
The court dismissed as moot the taxpayers' appeal of
the grant of summary judgment to defendants on the
taxpayers' suit claiming that legislation that provided for
a tourism subsidy tax was unconstitutional and that the
ballot title for the legislation was improper. The court
also dismissed as moot the state's appeal of the grant of
summary judgment to the taxpayers requiring the entire
ballot to be capitalized.

LexisNexis Headnotes
Civil Procedure > ... > Justiciability > Mootness > General
Overview
Constitutional Law > ... > Case or Controversy >
Mootness > General Overview

Overview
Colo. Const. art. X, 20, known as the Taxpayer's Bill of
Rights (TABOR), was approved by the state's voters.

HN1 Appellate courts will not render opinions on the


merits of appeals when issues presented in litigation

Julianna Wade

Page 2 of 3
883 P.2d 617, *617; 1994 Colo. App. LEXIS 288, **1
become moot because of subsequent events. A case is
moot when a judgment, if rendered, would have no
practical legal effect upon an existing controversy.

M. Tymkovich, Solicitor General, Stephen G. Smith,


Assistant Attorney General, Denver, Colorado, for
Defendants-Appellees and Cross-Appellants.

Civil Procedure > ... > Justiciability > Mootness > General
Overview

Judges: Opinion by JUDGE MARQUEZ, Criswell and


Taubman, JJ., concur

Constitutional Law > ... > Case or Controversy >


Mootness > General Overview

Opinion by: MARQUEZ

Governments > State & Territorial Governments > Elections

HN2 If conduct sought to be addressed is peculiar to an


election, the occurrence of the election itself will render
the controversy moot.
Civil Procedure > ... > Justiciability > Mootness > General
Overview
Civil Procedure > ... > Justiciability > Mootness > Evading
Review Exception
Civil Procedure > ... > Justiciability > Mootness > Public
Interest Exception
Constitutional Law > ... > Case or Controversy >
Mootness > General Overview

HN3 Colorado recognizes two exceptions to the


mootness doctrine. First, a court may elect to settle a
controversy when such controversy is capable of
repetition, yet evading review. Under the second
exception, an appellate court may hear a moot case if
the matter involves a question of great public importance
or an allegedly recurring constitutional violation.
Civil Procedure > ... > Justiciability > Case & Controversy
Requirements > General Overview
Civil Procedure > ... > Justiciability > Case & Controversy
Requirements > Actual Controversy
Constitutional Law > ... > Case or Controversy >
Constitutional Questions > General Overview
Family Law > Adoption > Disclosures > Adoption Records
Governments > State & Territorial Governments > Elections

HN4 While the constitutionality of a ballot measure is an


important issue, that very importance is also a reason
for deciding cases involving such constitutional issues
in the context of an actual controversy.
Counsel: Kevin B. Pratt, Colorado Springs, Colorado,
for Plaintiffs-Appellants and Cross-Appellees.
Gale A. Norton, Attorney General, Stephen K.
ErkenBrack, Chief Deputy Attorney General, Timothy

Opinion
[*618] In this action for declaratory relief and permanent

injunction, plaintiffs, Douglas Campbell, Clyde Harkins,


and Douglas Bruce, appeal a summary judgment in
favor of defendants, Natalie Meyer, the Secretary of
State; and the State of Colorado, on plaintiffs' claims
that the ballot title for HB 93-1330 is improper and that
HB 93-1330 is unconstitutional. The state cross-appeals
a summary judgment in favor of plaintiffs requiring the
entire ballot title to be capitalized. We conclude the
appeal and cross-appeal are moot and, therefore,
dismiss them.
Colo. Const. art. X, 20, also [**2] known as the
Taxpayer's Bill of Rights (TABOR), was an initiated
constitutional amendment approved by the voters at the
1992 general election. TABOR took effect on December
31, 1992.
The General Assembly passed HB 93-1330, also called
the "tourism subsidy tax," in 1993, subject to voter
approval. HB 93-1330 included a ballot title for the
referred tourism subsidy tax which provided in pertinent
part:
Shall state taxes be increased by $ 13,100,000 annually
in the first full fiscal year of implementation, and by $
13,100,000 as adjusted for inflation plus the percentage
change in state population for each fiscal year after the
first full fiscal year of implementation, by reinstating the
0.2 percent sales tax on tourist-related items . . . ?
Plaintiffs filed a complaint on August 10, 1993, asserting
that: (1) HB 93-1330 violates TABOR because it does
not state the specific dollar amount of revenue increase
to be used in calculating fiscal year spending; (2) the
ballot title in HB 93-1330 violates TABOR because it
sets out a formula for increase in tax revenues, instead
of stating a specific dollar increase; and (3) the ballot
title violates TABOR because it was not printed in
capital [**3] letters.
The trial court granted defendants' motion for summary
judgment as to the first two of plaintiffs' claims for relief

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Page 3 of 3
883 P.2d 617, *618; 1994 Colo. App. LEXIS 288, **3
- the first on grounds that it did not have jurisdiction, and
the second on grounds that the substance of the ballot
title did not violate TABOR. Plaintiffs prevailed on their
third claim and the trial court ordered the ballot title to be
printed in capital letters. The voters subsequently
defeated the measure at the November 2, 1993, general
election.
Defendants contend that because the voters defeated
the measure, the case is moot. We agree.
HN1 Appellate courts will not render opinions on the
merits of appeals when issues presented in litigation
become moot because of subsequent events. A case is
moot when a judgment, if rendered, would have no
practical legal effect upon an existing controversy.
American Drug Store, Inc. v. Denver, 831 P.2d 465
(Colo. 1992).

review of similar claims prior to an election pursuant to


1-1-113, C.R.S. (1994 Cum. Supp.); cf. 1-40-107,
C.R.S. (1994 Cum. Supp.) (specific pre-election
procedures governing ballot title challenges). Moreover,
if and when such a ballot measure is passed, plaintiffs in
such case may pursue their claims on appeal. See
Bickel v. City of Boulder, ___ P.2d ___ (Colo. No.
94SA130, September 12, 1994).
In sum, we conclude that plaintiffs [**5] are not "forever
deprived of the opportunity of review." Rocky Mountain
Ass'n of Credit Management v. District Court, 193 Colo.
344, 346, 565 P.2d 1345, 1346 (1977).
Under the second exception, an appellate court may
hear a moot case if the matter involves a question of
great public importance or an allegedly recurring
constitutional violation. Humphrey v. Southwestern Development Co., supra.

[*619] Here, because the voters did not approve the

measure, there is no existing controversy and a


determination of the substantive issues presented would
have no practical legal effect. See Crowe v. Wheeler,
165 Colo. 289, 439 P.2d 50 (1968) [**4] (controversy or
uncertainty evaporated when the election was
concluded); W-470 Concerned Citizens v. W-470 Highway Authority, 809 P.2d 1041 (Colo. App. 1990) HN2 (if
conduct sought to be addressed is peculiar to election,
the occurrence of the election itself will render the
controversy moot).
HN3 Colorado recognizes two exceptions to the
mootness doctrine. First, a court may elect to settle a
controversy when such controversy is capable of
repetition, yet evading review. Humphrey v. Southwestern Development Co., 734 P.2d 637 (Colo. 1987).
Whether an identical measure would be presented and
approved by voters is a matter of speculation. Further, it
is possible that similarly situated plaintiffs could obtain

HN4 While we realize the importance of issues


concerning the constitutionality of a ballot measure,
that very importance is also a reason for deciding cases
involving such constitutional issues in the context of an
actual controversy. In re Ballot Title Concerning Confidentiality of Adoption Records, 832 P.2d 229 (Colo.
1992). Further, plaintiffs have not demonstrated any
adverse consequences that would compel a court to
invoke this exception. Cf. Beeson v. Kiowa County
School District RE-1, 39 Colo. App. 174, 567 P.2d 801
(1977) (review of school policy denying equal protection
under the Fourteenth Amendment even after plaintiff
graduated).
Under these circumstances, [**6] we conclude that the
issues raised in the appeal and cross-appeal are moot.
The appeal and cross-appeal are dismissed.
JUDGE CRISWELL and JUDGE TAUBMAN concur.

Julianna Wade