Opinion · Colorado Court Opinions

STEGON v. PUEBLO W. METRO. DIST., 198 Colo. 128 (1979)

596 P.2d 1206

Type
Opinion
Court
Colorado Court Opinions
Jurisdiction
Colorado
Date
1979-07-02
Topic
general

STEGON v. PUEBLO W. METRO. DIST., 198 Colo. 128 (1979) (596 P.2d 1206) Andrew Stegon v. Pueblo West Metropolitan District No. 79SA122Supreme Court of Colorado.

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STEGON v. PUEBLO W. METRO. DIST.,198 Colo. 128(1979)
(596 P.2d 1206)
Andrew Stegon v. Pueblo West Metropolitan District
No. 79SA122
Supreme Court of Colorado.
Decided July 2, 1979.
Metropolitan district appeals from a judgment of the district court setting aside a special election concerning an increase in the 1979 local tax levy.Affirmed
1.ELECTIONS—Special — Local Tax Levy — Statute — Relates Only toOfficials — Argument — Lack of Merit.Where defendant-district appealed from a judgment of the trial court setting aside a special election concerning an increase in the 1979 local tax levy and now argues that plaintiff may contest the election only by alleging one of the causes of contest set forth in section1-10-101, C.R.S. 1973,held, this argument has no merit because this section relates only to elections of officials, and was inapplicable to special elections concerning local tax levy.
2.TAXATION—Special — Tax Levy — Notice Provisions — Failure to Comply —Election Set Aside — Statute.Where district failed to comply with the notice provisions of section29-1-302(3), C.R.S. 1973, regarding submission of question of whether to grant an increased local tax levy,held, such failure on the part of the district warrants setting aside the election; the statute explicitly provides that at least 30 days' notice by newspaper "shall be given" when the question of an increased levy is submitted to the electorate; thus, notice which was first published 24 days prior to the election was inadequate.
3.ELECTIONS—Special — Notice — Statute — Mandatory — StrictConstruction — Thirty Days.When evaluating the notice of a special election within a district, the better rule is to require strict compliance; in instant case, the statutory language of section29-1-302(3), C.R.S. 1973, is mandatory and should be strictly construed, namely: that notice is to be given at least thirty days in advance of the date set for the election.
4.Amount of Time to Contest — Local Tax Levy — Increase — Statute —Thirty Days.With reference to the amount of time which plaintiff had to contest special election concerning an increase in the 1979 local tax levy, reviewing court is of the view that the applicable statute is section 32-1-840, C.R.S. 1973, which provides for 30 days "to contest the election of any personor the results of election on any question"; this latter provision governs in this instant and not the 10 day limit of section 1-10-110(3), C.R.S. 1973.
5.TAXATION—District's Debt Service — Decrease — Offset — Increase —Revenue — Reduce — Percentage — Prohibited — Statute.It follows from section29-1-301(1), C.R.S. 1973, that any decrease in a district's debtPage 129service is a separate matter and cannot be offset against the increase in general revenue so as to reduce the percentage increase, for purposes of determining necessity of special election concerning increase in local tax levy.
Appeal from the District Court of the County of Pueblo, Honorable Jack F. Seavy, Judge.
David Kelly, for plaintiff-appellee.

Jenkins, O'Rourke Breitenbach, P.C., Patti F. O'Rourke, for defendant-appellant.
En Banc.
MR. JUSTICE GROVES delivered the opinion of the Court.
Pueblo West Metropolitan District (the District) appeals from a judgment of the district court setting aside a special election concerning an increase in the 1979 local tax levy. We affirm.

The district sought permission from the Colorado Division of Local Government to levy a tax which would increase its revenue over seven percent from the previous year. Permission was denied on November 13, 1979. Pursuant to section29-1-302, C.R.S. 1973, which provides for voters' approval even after a denial by the Colorado Division, the District decided to hold an election. On December 12, 1978, the voters approved the levy.

On January 11, 1979, Stegon sought an order setting aside the election on the ground that the District had not complied with the notice provisions of section29-1-302(3), C.R.S. 1973 which reads:

"Due notice of submission of the question of whether to grant the increased levy shall be given by the appropriate official designated by law for at least thirty days in advance of the date set for the general or special election by publication in some newspaper published in such taxing district."

The first notice of the election appeared in thePueblo Chieftainon November 18, 1978.

The District appeals from the judgment setting aside the election on the following grounds: (1) that Stegon cannot prevail because he did not plead a cause of contest designated in section1-10-101, C.R.S. 1973; (2) that the election is valid because none of the irregularities affected thePage 130result; (3) that Stegon should have protested the election within ten days as provided by section 1-10-110(3), C.R.S. 1973; and (4) that an election was not a prerequisite to the levy since the portion of the levy applied to general operating expenses did not increase by more than seven percent the revenue applied to general operating expenses the previous year.
I.
[1]The District first argues that Stegon may contest the election only by alleging one of the causes of contest set forth in section1-10-101, C.R.S. 1973. This argument has no merit because this section relates only to elections of officials, and not to other elections.

To determine applicable bases of an action contesting an election on a tax levy, it is necessary to examine pertinent statutory provisions. Section29-1-302(3), C.R.S. 1973, quoted above, is one such statute. It sets up a notice requirement which the District did not meet and provides a proper basis for Stegon's suit.See Jardon v. Meadowbrook-FairviewMetropolitan District,190 Colo. 528,549 P.2d 762(1976) in which this court analyzed separately compliance with notice requirements and claims made pursuant to section 1-10-110, C.R.S. 1973.
II.
[2]The second issue is whether failure to comply with the notice provisions of section29-1-302(3), C.R.S. 1973 warrants setting aside the election. The District maintains that the failure was a mere technical irregularity and that the election remains valid because no mandatory requirement was violated, no fraud occurred, and the irregularities of notice did not affect the outcome. We disagree.

Here notice was first published 24 days prior to the election. Section29-1-302(3), C.R.S. 1973 explicitly provides that at least 30 days' notice by newspaper publication "shall be given" when the question of an increased levy is submitted to the electorate. The statute is specific and its language mandatory.

The majority of courts hold that notice requirements for special elections should be construed more strictly than for general elections. These courts differ as to whether the notice should be evaluated under standards of strict compliance or under standards of substantial compliance.See26 Am. Jur. 2d 195; Annot., 119 A.L.R. 661 (1939).[3]We determine that the better rule is to require strict compliance when evaluating the notice of a special election within a district. The stricter rule gives effect to the legislative mandate and insures that the objective of insuring adequate notice will be achieved. The rule also avoids difficulties in determining what constitutes substantial compliance and problems of proof connected with determining whether defects in notice affected an election's outcome. We, therefore, hold that the statutory language is mandatory and should be strictly construed.Page 131
III.
[4]The next issue concerns the amount of time which Stegon had to contest the election. The District contends that the 10-day limit of section 1-10-110(3), C.R.S. 1973 applies, while Stegon maintains that he had 30 days under section 32-1-840, C.R.S. 1973. The former statute clearly refers to contests of elections of county officers. Section 32-1-840, C.R.S. 1973, on the other hand, provides for 30 days "to contest the election of any personor the results of election on any question." (Emphasis added.) The latter provision governs in this instance.Seealso, Jardon, supra.
IV.
The District's final contention is that no election was necessary because the proposed levy would not increase revenue more than seven percent compared to the previous year. General revenue increased from $281,573.00 in 1978 to $494,603.00 in 1979. The funds for debt service were reduced from $531,212.00 to $293,363.00. The District maintains that the reduction in debt service funds exceeded the increase in general revenue funds, thereby effecting an overall net reduction, so the total increase was less than seven percent.

The District relies upon section29-1-301(1), C.R.S. 1973 for the authorization to subtract the reduction in debt service before computing the percentage of increase in the general revenue. The statute reads in part:

"(1) Except as otherwise provided, all statutory tax levies when applied to the total valuation for assessment of the state, each of the counties, cities, and towns not chartered as home rule, and each of the fire, sanitation, irrigation, drainage, conservancy, and other special districts established by law, shall be so reduced as to prohibit the levying of a greater amount of revenue than was levied in the preceding year plus seven percentexcept to provide for the payment of bonds and interest thereon." (Emphasis added.)[5]We do not accept the District's interpretation of the statute. Under sections 32-3-114(1)(e), 32-4-124, C.R.S. 1973, when a metropolitan district determines that an increase in the district's indebtedness exceeding $5,000 or one percent of the value of the district's taxable property would be desirable, the board must submit the proposed increase to the vote of the electorate. Thus, the question of any increase in a district's indebtedness is a matter separate from an increase in general revenues. Similarly, it follows from section29-1-301(1), C.R.S. 1973 that any decrease in a district's debt service is a separate matter and cannot be offset against the increase in general revenue so as to reduce the percentage increase.

Judgment affirmed.Page 132