Opposition Brief — Save Palisade Fruitlands v. Todd

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Case No. 01-1651

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Supreme Court of the Gnited States

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SAVE PALISADE FRUITLANDS, a Colorado

unincorporated nonprofit association,

HARRY C. TALBOTT, GALEN R. WALLACE,

and ALLEN M. (MAC) WILLIAMS,

Petitioners,

VS.

MONIKA TODD, in her official capacity as County

Clerk of Mesa County, Colorado and BOARD OF

COUNTY COMMISSIONERS OF MESA COUNTY,

Respondents.

~—--——- @--- -- .

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Tenth Circuit

ee ;

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

—— -—-—— @ -- ——

JUN LI 2007

Suaemee Court Us» 7

FILED

Valerie J. Robison, Esq., Counsel of Record

Maurice Lyle Dechant, Esq.

Mesa County Attorney

P.O. Box 20,000-5004

Grand Junction, CO 81502

Telephone: (970) 244-1612

Facsimile: (970) 255-7196

Attorneys for Respondents

QUESTIONS PRESENTED FOR REVIEW

_ Whether the citizens of a State violate the Equal Protection

clause by reserving the power of initiative to residents of

certain political subdivisions, while withholding that power

from residents of other political subdivisions of the State.

Where the citizens of a State have reserved the power of

initiative as to legislative matters, whether the legislature of

that State violates the Equal Protection Clause by

delegating authority over certain of those legislative matters

to county governments, some of which counties are

prohibited from allowing ballot initiatives, thereby

depriving the residents of those counties of the power of

initiative, while that power is freely exercised by residents

of other counties.

te eT Oy oS

ili

TABLE OF CONTENTS

Il. SIAL AEs Gr REM GE 2 osx s cccceesecotcctsceecses 2

Il, ARGUMENT - REASONS FOR DENYING THE WRIT

A. The Petition for Writ Of Certiorari to the United States

Supreme Court does not present a compelling reason for

veviow by Gb COUR 6.4.5.ccckaccbaNanbedereaensweees 9

B. Whether the citizens of a State violate the Equal Protection

. clause by reserving the power of initiative to residents of

certain political subdivisions, while withholding that power

from residents of other political subdivisions of the

State

0 6054445 006 Kw ge bee eee ree 12 |

Cc. Where the citizens of a State have reserved the power of

initiative as to legislative matters, whether the legislature of

that State violates the Equal Protection Clause by

delegating authority over certain of those legislative matters

to county governments, some of which counties are

prohibited from allowing ballot initiatives, thereby

depriving the residents of those counties of the power of

initiative, while that power is freely exercised by residents

Of ctiner COUMMIEE, 0... ccc ccc ccc cc ccccccsccccecs 24

IV. CONCLUSION .......-c ccc cece cece cree c eee encccces 29

APPENDIX: Save Palisade Fruitlands v. Todd, 270 F.3d 1204 (10" Cir.

TED nc cccccccccccncescccssscssccssccocecees la

Dellinger v. Board of County Com’rs for the County of

Teller, 20 P.3d 1234 (Colo.App. 2000) cert. denied No.

OOSC801 (Colo., April 9, 2001) ......-------+-+--- 18a

TABLE OF AUTHORITIES

Federal Cases

Baldwin v. City of Winston-Salem, N.C., 710 F.2d 132

Spa, SN cas dew duds uebdcndeeasasbaekeabesaueniuekes 8

Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725,

SSR PE ENE ooh a bh eh dcekaénndepenansuehasedds eaten 17

Board of County Commissioners of Pitkin County v. Pfeifer, et. all,

es ry ee PO CEN FED 05 86 ks hes dive sagesaseserece 16

Board of Estimate of City of New York v. Morris, 489 U.S. 688, 109

Se SR Ba CET CUNOOD. 6:5 ockc ee tkdcsecanencncawans 20

Branson School District RE-82 v. Romer, 161 F.3d 619

a ee ca ok ansdandeeavces ees ceauuaceces eee esau 19

Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059,

ER ee ENED 606 64 SN Kb seb aoe accksesapisnaenes 10-12

Citizens for Responsible Government State Political Action Committee -

v. Buckley, 60 F.Supp.2d 1066 (D.Colo 1999) .................. 18

City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591,

RE ie I Fo oo chi oka boo Ke dm ce 10

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S.Ct.

Bay Oe RA FEE GEE i 06a ob bed 6 ded aks Op eeeanean 18

Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101

mt | PPP Pee Tere Sere errr err rr rey er er 19

Donatelli v. Mitchell, 2 F.3d 508 (3™ Cir. 1993) ............0.0008- 17

Eaton v. Jarvis Products Corp., 965 F.2d 922 (10" Cir. 1992) ........ 10

FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096,

£96 LER SO SEE CIS SEe 6 ko xkKacunbacnbeeecee eet 17

First English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, California, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d

BOCISSE) cv nccannttss50h0%04500000040000 ee 20

Grant v. Meyer, 828 F.2d 1446 (10" Cir. 1987) aff'd Meyer v. Grant,

486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed. 425 (1988) ....... 10, 12, 22

Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637,

525 LAR Bal CROP ia ceca odan ne dewedeaeeneoese ee 17

Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581,

BZD LG SRGG7 CIGD occ caccisschsencnndsegeuasaqanneanea 20

Kelly v. Macon-Bibb County Board of Elections, 608 F.Supp. 1036

COE EAIA TIO 9 0 bd own ck denneeeeensensseas arene 8-12, 22

Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886,

SOD Re SES CEI) onc ccenwicanncettdiavnwdsesen tana 10, 12

Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651,

me we rr Pr rem cy 20

Vii

Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533,

FS Lee as SS CFSE 6 0 6 0bnccccensccenkescdenaneseanesenas 10

National R.R. Passenger Corp. v. Atchison Topeka and Santa Fe Ry.

Co., 470 U.S. 451, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985) ........ 18

Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742,

GD LEDGE BED CHGTE) 0 06 c0cccccencsecuvases seeeesseene 19

Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759,

194 L268 258 (ISP ED 0c ncccccensssdsneseesneeataneneaee 19

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1,

93 SLX, 1276, FO LES DOC 6 00kcenkescactsscsseneeee 10

Save Palisade Fruitlands v. Todd, 270 F.3d 1204

tot 2 Pepper 15, also attached as Appendix

Sorenson v. Secretary of the Treasury of the United States, 475 U.S.

851, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986) ................24.. 20

Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291

(G9? Cle. 1998)... «nv escc0ecccaeuseucuueneeeieeeeee $

Villanueva v. Carere, 85 F.3d 481 (10 Cir. 1996) ................. 18

Walters v. National Association of Radiation Survivors, 468 U.S.

1323, 105 S.Ch. 11, G2 LR SS SSS CISD 0 ovcccecencansusuaeus 19

Vill

Colorado State Cases

Board of Comm'rs of Garfield County v. Leonard, 3 Colo.App. 576,

Oe Peer errr Pr rrr rr rrr rr ry rrr rrr Try 22

Board of County Com'rs of Dolores County v. Love, 470 P.2d 861

SED; SGD 0.6 baka 69006400 eeadnes odencccrssusversoecsenes 17

Board of County Commissioners v. State Board of Social Services, 186

Cat, GE, Fae ae BOP CPO hed we ccc csdcenizevczesvessntes 16

Colburn v. Board of County Commissioners, 15 Colo. App. 90,

GRP. BOE CI oo woe be cee eR h eects sc cdsccceceecoseneess 20

Dellinger v. Board of County Com’rs for the County of Teller,

20 P.3d 1234 (Colo.App. 2000) cert. denied No. OOSC801

(Colo., April 9, 2001) ............... 19, also attached as Appendix

Kirkwood v. School Dist. No. 7 in Summit County, 45 Colo. 368,

fe fi. PPT Per rr rrr rrr rTrrrTrTrrrrTrrrrTrrr se 10-12

Roberts v. People, 9 Colo. 458, 13 P. 630 (1887) ..............---- 18

State ex rel. Gale Norton v. Board of County Commissioners of Mesa

County, 897 P.2d 788 (Colo. 1995) .... 2.2.22. e eee cece eee eeee 10

Stermer v. Board of County Commissioners, 5 Colo.App. 379,

A Pre rrr TT yr rr rrr rrr TT Tyr r rr rr 18

Other Cases

Amalgamated Transit Union Local 587 v. State, 11 P.3d 762

PN NEED 6.0 4066.004.00 66s edb aus ceréndhess Metre ded nine 8

Hart v. Secretary of State, 715 A.2d 165 (Me. 1998) ............... 19 -

State ex rel. Heavey v. Murphy, 982 P.2d 611 (Wash. 1999) ......... 17

State ex rel. Stenberg v. Moore, 602 N.W.2d 465 (Neb. 1999) ........ 8

Constitutional Provisions o's

CEG GOT, A Ve Ge on ccc ccccdosccnicnvsesndcienssessesves 10

Se I ED cd bavekiccuesaauslcsdevaenaeeedanens 17

CoLo. Const. Art. V, §1(2) Se ye ee ee ary 20 |

it CE Be. WII on ns os satiny cede sadtade 10,12,22. |

Ce oh a rsa 17

CG GO, BEE: VE OP 666s hoe ccbdsceee debe Fa0Ns 4440 des 20

Authorities

BLACK’s LAW DICTIONARY 911 (7" ed. 1999) ............-00- 8-12, 22

L. TRIBE, AMERICAN CONSTITUTIONAL LAW, §13-17 AT 773

Lo errr ere ye CeTe eT TT err ECTerTT ers eee 10, 12

Rules

TN A Sethe Bt A DE OES LORETO TEEME POET 20

COMES NOW, Valerie J. Robison, Esq., Assistant Mesa County

Attorney, appearing on behalf of Monika Todd, in her official capacity as

County Clerk of Mesa County, Colorado (“Todd” herein) and the Board of

County Commissioners of Mesa County (“Board” herein) (referred to

jointly herein as “County”), and requests that the Supreme Court of the

United States deny the Petition for Writ of Certiorari.

I. CONSTITUTIONAL PROVISIONS

INVOLVED IN THIS CASE

The Petitioners cite the Fourteenth Amendment to the United

States Constitution, the Equal Protection Clause, as the basis for their

Petition. Also implicated in this case are the provisions of the

Constitution for the State of Colorado, Article V, Section 1,

Subparagraphs (1) and (9) which provide:

§ 1. General assembly--initiative and referendum

(1) The legislative power of the state shall be vested in the

general assembly consisting of a senate and house of

representatives, both to be elected by the people, but the

people reserve to themselves the power to propose laws and

amendments to the constitution and to enact or reject the

same at the polls independent of the general assembly and

also reserve power at their own option to approve or reject

at the polls any act or item, section, or part of any act of the

general assembly.

(9) The initiative and referendum powers reserved to the

people by this section are hereby further reserved to the

registered electors of every city, town, and municipality as

to all local, special, and municipal legislation of every

character in or for their respective municipalities. The

manner of exercising said powers shall be prescribed by

general laws; except that cities, towns, and municipalities

may provide for the manner of exercising the initiative and

referendum powers as to their municipal legislation. Not

more than ten percent of the registered electors may be

required to order the referendum, nor more than fifteen per

cent to propose any measure by the initiative in any city,

town, or municipality.

Il. STATEMENT OF THE CASE

On November 3, 1999, counsel for the Petitioners wrote a letter to

Todd requesting a ballot summary for a land use initiative. Record - Aplt.

App. at 57. On November 16, 1999, Todd declined the Petitioners’ ballot

summary request indicating that she could find no authority in statute or

state constitution to honor the request. Record - Aplt. App. at 56. On

November 22, 1999, the Petitioners filed their Complaint in the United

States District Court for the District of Colorado listing Todd as the only

Defendant. Record - Aplt. App. at 7-16. On December 22, 1999, Todd

filed an Answer to the Complaint. Record - Aplt. App. at 17-25.

As the case proceeded, the Board was added as a party. Record -

Aplt. App. at 326, Ll. 1-4. Ultimately, the parties filed cross motions for

summary judgment. Record - Aplt. App. at 26-73 and Supp. Aplee. App.

1-76. Prior to a ruling, the proceedings were stayed with the consent of

the parties by the District Court, pending the outcome of a similar case in

the Colorado Court of Appeals: Dellinger v. Board of County Com’rs for

the County of Teller, 20 P.3d 1234 (Colo.App. 2000) cert. denied April 9,

2001. Record - Aplt. App. at 32, Ll. 3-6; and see Petition Pg. 46a-54a for

case.

Shortly after the ruling from the Colorado Court of Appeals on the

Dellinger case, a hearing was held on September 28, 2000. Record - Aplt.

App. at 391-410. At the hearing the District Court heard oral arguments

and reviewed the previously filed briefs. Record - Aplt. App. at 408, LI.

18-22. At the conclusion of the hearing the District Court entered a ruling

denying the Motion for Summary Judgment filed by the Petitioners and

granting the Motion for Summary Judgment filed by the County. Jd. A

written ruling was entered on September 29, 2000. Record - Aplt. App. at

235-237. An appeal to the United States Court of Appeals for the Tenth

Circuit followed (hereafter the “Tenth Circuit Appeal”).

After filing the Tenth Circuit Appeal, the Petitioners attempted to

supplement the record with additional facts. Record - Aplt. App. at 240-

306. The Motion to Supplement was denied by the United States Court of

Appeals for the Tenth Circuit (hereafter the “Tenth Circuit Court of

Appeals”). Record - Addendum 2. On November 5, 2002, oral argument

was held in front of the Tenth Circuit Court of Appeals. A decision

affirming the United States District Court for the District of Colorado was

issued on February 7, 2002. The Petition for Writ of Certiorari followed.

BACKGROUND

This case arose from the Petitioners’ attempts to change the Mesa

County Land Development Code (hereafter, ““Code”) through a ballot

measure. In 1996, Mesa County began the process of rewriting its land

development code. The original land development code for Mesa County

was adopted in 1961 and had been amended and rewritten several times

since its inception.

The process of rewriting the Mesa County Land Development

Code involved over ninety public meetings held to develop the draft code

recommended by the Mesa County Planning Commission (hereafter

“Planning Commission”) to the Board for adoption. Once the Planning

Commission tendered its recommendations to the Board, seven additional

public meetings and/or hearings were held before the Board. The Board

also held fourteen public workshops with staff to review and evaluate the

public comments and to prepare the final document for adoption.

One particular section of the Code was discussed extensively by

the Petitioners in the public hearings and workshops. The section related

to simple land divisions'. The Petitioners contended that in the East

Orchard Mesa area of the County, the minimum lot size resulting from a

simple land division should be 10 acres. Record - Aplt. App. at 59. Thus,

the minimum property size necessary for a simple land division would be

20 acres, rather than the 10 acre minimum contemplated by the Board. In

light of the public comments, the Board added a “Note” to the Simple

Land Division section (3.5.7) of the Code stating; “An East Orchard Mesa

study, due to be completed by March 15, 2000, may result in a change to

this section for that particular planning area.”

On September 30, 1999, the Planning Commission began meeting

with citizens in the East Orchard Mesa area. A total of five meetings with

the East Orchard Mesa area citizens were held. The meetings were

extremely contentious. Many of the people at the meetings wanted fewer

'A simple land division is an exemption from the subdivision

process of the Mesa County Land Development Code which allows a

property owner to divide one parcel into two parcels without a public

hearing, assuming certain conditions are met.

restrictions on simple land divisions. Others, like the Petitioners, wanted

more restrictions.

Prior to the Board’s adoption of the rewritten Code, counsel for the

Petitioners wrote a letter to Todd on November 3, 1999, requesting a

ballot summary for a land use initiative. Record - Aplt. App. at 57-59. On

November 16, 1999, Todd declined the Petitioners’ ballot summary

request indicating that she could find no authority in statute or state

constitution allowing her to issue the ballot summary. Record - Aplt. App.

at 56. On November 22, 1999, the Petitioners filed their Complaint in the

United States District Court for the District of Colorado. Record - Aplt.

App. at 7-16.

Also on November 22, 1999, the Board had passed a resolution

adopting the Code. The Planning Commission formally recommended to

the Board that “no changes be made to the Mesa County Land

Development Code for the time being (to give time to see how the new

Code works)” following the final meeting on December 2, 1999. On

- January 13, 2000, the Planning Commission approved the Code adopted

by the Board. Following the Planning Commission’s approval, one final

hearing was held before the Board to receive public comment. On

February 28, 2000, the Code was finally and completely adopted by the

Board. The “Note” to the Simple Land Division Section remained

unchanged. As a result, any simple land division in the East Orchard Mesa

————

area required a minimum of 10 acres to begin the division of property,

rather than the 20 acres desired by the Petitioners.

The Petitioners have claimed an equal protection violation based

upon the fact that there are two classifications of counties; statutory

counties and home rule counties. Most prevalent are the statutory

counties. Statutory counties were created in 1876 with the creation of the

Constitution for the State of Colorado. Mesa County was created in 1883.

C.R.S. §30-5-143. Of the 64 counties in the State of Colorado, 60 are

statutory counties, 2 are home rule counties, and 2 are home rule city and

counties. A statutory county is a political subdivision of Colorado existing

as an arm and agent of the State of Colorado. In 1970, the citizens of

Colorado approved a new constitutional provision to the Colorado

Constitution providing for home rule counties. Colo. Const. Article XIV,

Section 16. Home rule county charters are required to contain procedures

for initiative and referendum measures. Hence, home rule counties now

have the power of initiative and referendum while statutory counties do

not.

Ill. ARGUMENT - REASONS FOR DENYING THE WRIT

Petitioners’ request for the issuance of a Writ of Certiorari from

this Court should be denied for the following reasons:

A. The Petition for Writ Of Certiorari to the United States

Supreme Court does not present a compelling reason for

review by this Court under any of the factors enumerated in

Sup. Ct. R. 10.

B. The citizens of a State do not violate the Equal Protection

clause by reserving the power of initiative to residents of

certain political subdivisions, while withholding that power

from residents of other political subdivisions of the State.

a Where the citizens of a State have reserved the power of

initiative as to legislative matters, the legislature of that

State does not violate the Equal Protection Clause by

delegating authority over certain of those legislative matters

to county governments, some of which counties are

prohibited from allowing ballot initiatives, thereby

depriving the residents of those counties of the power of

initiative, while that power is freely exercised by residents

of other counties.

A, The Petition for Writ Of Certiorari to the United States

Supreme Court does not present a compelling reason for

review by this Court under any of the factors enumerated

in Sup. Ct. R. 10.

Pursuant to Supreme Court Rules, cases that present a compelling

reason for review may be accepted by this Court for review. Sup. Ct. R.

10. Rule 10, defines a compelling reason for review as: (1) a decision has

been issued by a United States court of appeals in conflict with another

United States court of appeals; (2) a decision has been issued by a United

States court of appeals on an important federal question in a way that

conflicts with a decision issued by a state court of last resort; (3) there has

been a departure from the accepted and usual course of judicial

proceedings, or there has there been any sanction of a such a departure, by

a United States court of appeals; (4) an important federal question has

been decided by a state court of last resort in a way that conflicts with the

decision of another state court of last resort; or (5) there is an important

question of federal law decided by a United States court of appeals that

should be settled by this Court, or there has there been an important

federal question decided in a way that conflicts with relevant decisions of —

this Court. Id. |

In this case, there has been no conflict between any United States

court of appeals. The Tenth Circuit and all other United States court of

appeals recognize that the power of referendum and initiative is not a

fundamental right, unless and until the power is vested in the people. In

the State of Colorado, the power of initiative has not been vested in the

citizens of various political subdivisions of the state, including statutory

counties. See Colo. Const. Article V, Section 1(9). Likewise, there has

been no important federal question that has been decided by a state court

of last resort in a way that conflicts with the decision of another state court

of last resort. On the contrary, all state courts reviewed agree that the

power of initiative and referendum is a reserved power, not a fundamental

right. A few of the cases found include: Kelly v. Macon-Bibb County

Board of Elections, 608 F.Supp. 1036, 1039 & n. 1 (M.D.Ga.1985);

Amalgamated Transit Union Local 587 v. State, 11 P.3d 762 (Wash.

2000); State ex rel. Stenberg v. Moore, 602 N.W.2d 465 (Neb. 1999);

State ex rei. Heavey v. Murphy, 982 P.2d 611 (Wash. 1999); and Hart v.

Secretary of State, 715 A.2d 165 (Me. 1998).

Furthermore, there has been no decision issued by a United States

court of appeals on an important federal question in a way that conflicts

with a decision issued by a state court of last resort. On the contrary, the

Tenth Circuit Court explicitly upheld the decision of the State of Colorado

set out in Dellinger v. Board of County Commissioners for the County of

Teller, 20 P.3d 1234 (Colo.App. 2000) cert. denied No 0OOSC801 (Colo.,

April 9, 2001). Dellinger, like the Tenth Circuit Court of Appeals, held

that the power of initiative had not been reserved to the statutory counties

which are political subdivisions of the State of Colorado. Jd. Dellinger

also determined that there was no violation of the Equal Protection Clause

—————

of the U.S. Constitution by the lack of reservation of the initiative power.

Id, at 1238.

There is no compelling reason for the United State Supreme Court

to take jurisdiction of the case since there has been no departure from the

accepted and usual course of judicial proceedings, nor has there been any

sanction of a such a departure, by a United States court of appeals.

Finally, there is no important question of federal law decided bya

United States court of appeals that should be settled by this Court, nor

there has there been an important federal question decided in a way that

conflicts with relevant decisions of this Court. On the contrary, the

question of federal law that is dealt with in the case has already been

decided, that being, whether the power of initiative is a fundamental right,

or not. In all cases found, the power of initiative is not a right guaranteed

by the U.S. Constitution, but rather it is a state-created right. Taxpayers

United for Assessment Cuts v. Austin, 994 F.2d 291 (6" Cir. 1993); Kelly

v. Macon-Bibb County Board of Elections, supra, 1039 & n. 1.

B. The citizens of a State do not violate the Equal Protection

clause by reserving the power of initiative to residents of

certain political subdivisions, while withholding that

power from residents of other political subdivisions of the

State.

Article V, Section 1(9) was adopted as part of the Colorado

Constitution following an election of the people of Colorado passing the

Constitutional Amendment in 1910 (hereafter “The Amendment”). Article

V, Section 1(1) of the Colorado Constitution provides that the powers of

initiative and referendum are reserved to the people on a statewide basis.

Under Article V, Section 1(9) of the Colorado Constitution the powers of

referendum and initiative are “... further reserved to the registered electors

of every city, town, and municipality as to all local, special, and municipal

legislation of every character in and for their respective municipalities ...”

On April 9, 2001, the law of the State of Colorado was settled

regarding the issue of whether the powers of initiative and referendum had

been reserved to the citizens of non-home rule counties. Dellinger v.

Board of County Com’rs for the County of Teiler, supra. The Dellinger

case stated clearly and finally that the powers of initiative and referendum

had not been reserved to the citizens of counties in 1910 by The

Amendment.

The powers of referendum and initiative are not rights fundamental

to the U.S. Constitution, rather they are a form of direct democracy. Kelly

v. Macon-Bibb County Board of Elections, supra; see Grant v. Meyer, 828

F.2d 1446 (10" Cir. 1987) aff'd Meyer v. Grant, 486 U.S. 414, 108 S.Ct.

1886, 100 L.Ed. 425 (1988), see also L. TRIBE, AMERICAN CONSTITUTIONAL

Law, §13-17 AT 773 (1978). “Where a state provides for an expression of

direct democracy, such as by initiative or referendum, it does so as a

matter of legislative grace; the right to participate in such a process is not

fundamental to our [federal] Constitution.” Kelly, 608 F.Supp. at 1039, n.

Any argument by the Petitioners that this is a voting rights case,

rather than a power to access the ballot case, is flawed. The U.S. Supreme

Court has “repeatedly upheld reasonable, politically neutral regulations

that have the effect of channeling expressive activity at the polls.” Burdick

v. Takushi, 504 U.S. 428, 438, 112 S.Ct. 2059, 2066, 119 L.Ed.2d 245

(1992); Munro v. Socialist Workers Party, 479 U.S. 189, 199, 107 S.Ct.

533, 539-540, 93 L.Ed.2d 499 (1986). There is nothing content based nor

politically partisan about the lack of a reservation of the power of initiative

and referendum to citizens of statutory counties.

Since there is no “fundamental right” to initiative and referendum,

no fundamental right has been violated. As a result, the basis for review in

this case would be a rationai basis, rather than strict scrutiny as argued by

the Petitioners.

The rational basis test applies where no fundamental rights or

suspect classification is involved. Eaton v. Jarvis Products Corp., 965

F.2d 922 (10" Cir. 1992); see also San Antonio Independent School Dist.

v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Although

the Petitioners do not argue that they are a “suspect classification”, it is

prudent to examine the issue.

In determining whether a suspect classification is present,

consideration must be given to whether the dissimilar treatment is based

upon race, sex or other protected grounds. City of Dallas v. Stanglin, 490

U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). In Kelly v. Macon-Bibb,

608 F.Supp. 1036, 1039 (M.D.Ga.1985) the Court determined that a “state

may not discriminate on the basis of ‘suspect’ classifications such as race.”

_ The Court went on to state: “However, the classifications established by

defendants’ construction of §12-5-175(a) do not involve such suspect

classifications”. There being no fundamentai constitutional right to call a

local referendum, defendants are not required to establish a compelling

state interest in support of their construction of the challenged statute.” Jd.

at 1039.

Two classes were treated differently on account of three

factors: duration of county residence, age, and whether an individual

actually exercised the right to vote in the last general election. Kelly

608 F.Supp. at 1039.

As in Kelly, no classification here is based on a suspect class such

as race, etc. Therefore, a compelling state interest need not be established.

Rather, the classification must be “reasonably related to a permissible state

interest.” Id. at 1039.

The rational basis standard is supported by the case law. In

Burdick v. Takushi, supra’, the Supreme Court addressed whether

Hawaii’s prohibition on write-in voting unreasonably infringed upon its

citizens’ rights under both the First and Fourteenth Amendments. The

Supreme Court began addressing the issue by stating: “Petitioner proceeds

from the erroneous assumption that a law that imposes any burden upon

the right to vote must be subject to strict scrutiny. Our cases do not so -

hold.” Burdick v. Takushi, 504 U.S. at 432, 112 S.Ct. at 2062-2063. The

Court went on to state: “Accordingly, the mere fact that a State’s system

‘creates barriers ... tending to limit the field of candidates from which

voters might choose ... does not of itself compel close scrutiny.’” Jd. It is

clear that even if the issue were as the Petitioners allege, the standard of

review would remain the rational basis test. The Tenth Circuit properly

applied this standard in its ruling.

“It is acknowledged that Burdick deals with an already imposed

power of voting. However, the rational is relevant to the issues in this

case.

In Burdick v. Takushi, supra, the Supreme Court addressed a

balancing test to determine whether Hawaii’s prohibition on write-in

voting unreasonably infringed upon its citizens’ rights under both the First

and Fourteenth Amendments. The Supreme Court stated:

A court considering a challenge to a state election law must

weigh “the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate” against

“the precise interests put forward by the State as

justifications for the burden imposed by its rule,” taking

into consideration “the extent to which those interests make

it necessary to burden the plaintiff's rights.” Burdick v.

Takushi, 504 U.S., at 433-434, 112 S.Ct., at 2063.

The Burdick balancing test:

a. The character and magnitude of the

asserted injury.

The Petitioners assert that their injury is a denial of their right to

access to the local ballot. However, Petitioners, as citizens of a statutory

county, have no “right” to access the local ballot on issues concerning land

use. In fact, the Petitioners have no federal constitutionally guaranteed

“right” to initiative and referendum. Kelly v. Macon-Bibb County Board of

| > Soe

Elections, 60 ¥©.Supp. 1036, 1039 & n. 1 (M.D.Ga.1985) and Grant v.

Meyer, 828 F.2d 1446 (10 Cir. 1987) aff'd Meyer v. Grant, 486 U.S. 414,

108 S.Ct. 1886, 100 L.Ed. 425 (1988). Moreover, even if the Petitioners

did have a “right” to initiative and referendum, their access is not

unconstitutionally limited. Rather, they may seek an initiative on the

statewide ballot.

The Petitioners have indicated that this would not be a viable way

to pursue the initiative they seek. In support of this position, the

Petitioners state * the “Colorado Ballot Title Setting Board determined that

it did not have jurisdiction to issue a title because the measure was neither

‘state legislation’ nor an ‘amendment to the constitution’ within the

meaning of the Colorado Constitution Art. V, §1(2), but rather was a

purely local matter.” See Petition, p.12. However, according to the

transcript of the Colorado Ballot Title Setting Board (“Title Board”

herein), the Petitioners were uninterested in actually determining whether

a county issue, in general, could be placed on a statewide ballot. On the

contrary, the Petitioners required that their initiative, as written and

‘The information concerning the Colorado Title Setting Board

was not before the United States District Court Judge. At the appellate

level, The Petitioners submitted a Motion to Supplement the Record to

the Tenth Circuit Court of Appeals. The Motion was denied.

Regardless, the issue continues to be raised by the Petitioners, and

therefore, must be addressed by the Respondents.

without adhering to any suggestions given by the legislative council be

considered by the Title Board. As a result the Title Board determined that

this particular initiative could not meet the jurisdictional requirements of

the Title Board. :

Irrespective, there is no statutory nor constitutional provision that

had been discovered by Mesa County, nor produced by the Petitioners, to

indicate that access to the ballot at the state level is prohibited on a limited

or local issue. In fact, the opposite is true. A constitutional amendment

may be localized on the statewide ballot. Article XVII, Section 9, of the

Colorado Constitution which became effective January 3, 1991, is one

such local provision. Under Article XVIII, Section 9, gaming is lawful

only in the City of Central, the City of Black Hawk and the City of Cripple

Creek.

Petitioners could also obtain the power to place a land use initiative

on a local statutory county ballot in two different ways. First, they could

seek an amendment to the current Colorado Constitutional provision in

Article V, Section 1(9) to include statutory counties. This could be done

on the statewide ballot by following the provisions of Article V Section

1(1), or by making such a request of the legislature. Second, they could

petition to have Mesa County become a home rule county.

Home rule counties were created pursuant to Article XIV, Section

16 of the Colorado Constitution. Under Article XIV, Section 16, the

people of the State of Colorado approved home rule counties and provided

that:

the registered electors of each county of the state are hereby

vested with the power to adopt a home rule charter

establishing the organization and structure of county

government consistent with this article and statutes enacted

pursuant hereto. Article 14, Section 16(1), Colorado

Constitution. Emphasis added.

Various statutory provisions were adopted, including C.R.S. § 30-11-508.

C.R.S. § 30-11-508 provides, “Every charter [of a home rule county] shall

contain procedures for the initiative and referendum of measures and for

the recall of elected officers.” C.R.S. § 30-11-508 was enacted in 1971,

just after the adoption of Article XIV, Section 16 of the Colorado

Constitution on November 3, 1970, and prior to the effective date of the

constitutional provision on January 1, 1972. Through the statutory

provision enacted pursuant to Article XIV, Section 16(1) (i.e. C.R.S. § 30-

11-508), referendum and initiative powers were reserved to the home rule

electors by the people of Colorado in the Colorado constitutional

amendment of Article XIV, Section 16.

Despite the lack of a specific provision for referendum and

initiative powers on local land use issues for statutory counties, the options

outlined above provide fairly easy access to the ballot. Consequently, any

burden on access to the ballot is borne only by those who fail to follow the

proper procedures. In light of the adequate ballot access afforded under

provisions of the Colorado Constitution, the lack of the power for local

land use initiatives for statutory counties is only a limited burden.

b. The precise interests put forward as

justification for the burden imposed by its

rule.

The interest which justifies the burden to the Petitioners is the right

of the people of the State of Colorado to determine who and under what

circumstances the power of referendum and initiative is reserved. The

home rule county “facilitates a broader degree of powers and enhances

local autonomy”. Save Palisade Fruitlands v. Todd, 270 F.3d 1204, 1214

(10" Cir. 2002). However, a statutory county is merely an extension of the

state. Colorado has determined time and again that statutory counties have

only those powers granted to them.

A county is not an independent governmental entity

existing by reason of any inherent sovereign authority of its

residents; rather, it is a political subdivision of the state,

existing only for the convenient administration of the state

government, created to carry out the will of the state.

(Citation omitted). As a political subdivision, a county, and

its commissioners, possess only such powers as are

expressly conferred upon them by the constitution and

statutes, and such incidental implied powers as are

reasonably necessary to carry out such express powers.

Board of County Com’rs of Dolores County v. Love, 470

P.2d 861, 862-863 (Colo. 1970); see also State ex rel. Gale

Norton v. Board of County Commissioners of Mesa County,

897 P.2d 788 (Colo. 1995).

Shortly after the opinion in the Love case, the people of the State of

Colorado passed a referendum allowing the home rule county. Colorado

Constitution, Article XIV, Section 16. Article XIV, Section 16, which was

adopted on November 3, 1970, effective on January 1, 1972, provided for

additional powers to the home rule county and its citizens. One such

power was prescribed in the accompanying statutory C.R.S. §30-11-508.

A home rule county must adopt a charter. A mandatory provision in the

charter is the initiative and referendum power for the citizens of the home

rule county. C.R.S. §30-11-508.

Unlike a municipality or a home rule county, a statutory county in

Colorado is nothing more than an agent of the state in the general

administration of the state policy, and its powers are solely at the

discretion of the state legislature. A statutory county is not allowed a

charter with additional powers not conferred by the state legislature.

However, cities, towns, municipalities, and home-rule counties all have

charter requirements and rights. Throughout the history of Colorado, the

Colorado Supreme Court has consistently ruled that a statutory county and

its commissioners, possess only such powers as are expressly conferred

upon them by the constitution and statutes, and such incidental implied

powers as are reasonably necessary to carry out such express powers.

Board of County Commissioners of Pitkin County v. Pfeifer, et. al., 190

Colo. 275, 546 P.2d 946 (1976); Board of County Commissioners v. State

Board of Social Services, 186 Colo. 435, 528 P.2d 244 (1974); Board of

County Commissioners v. Love, supra, Farnik v. Board of County

Commissioners, 139 Colo. 481, 341 P.2d 467 (1959); Colburn v. Board of

County Commissioners, 15 Colo. App. 90, 61 P. 241 (1900); Stermer v.

Board of County Commissioners, 5 Colo.App. 379, 38 P. 839 (1895).

The interest of the people in determining who and under what

circumstances the power of referendum and initiative is reserved is ample

- justification for the treatment of the various Colorado entities. “A

legislative classification that does not affect a suspect category or infringe

on a fundamental constitutional right ‘must be upheld against equal

protection challenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.’”” Donatelli v.

Mitchell, 2 F.3d 508, 515 (3% Cir. 1993), citing FCC v. Beach

Communications, Inc., 508 U.S. 307, ----, 113 S.Ct. 2096, 2101, 124

L.Ed.2d 211 (1993). In Donatelli, the court went on to state:

There is no need to actually articulate the purpose or

rationale supporting the classification; nor does the state

have any obligation to produce evidence to sustain the

rationality of its decision. See Heller [v. Doe, 509 U.S.

312, ----, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257 (1993)].

In short, a classification subject to rational-basis review ‘is

accorded a strong presumption of validity.’ Jd., at ----, 113

S.Ct. at 2642. Donatelli, 2 F.3d at 515.

Finally, the U.S. Supreme Court has determined when ruling on the

constitutionality of a provision that it is not for the United States Supreme

Court to make legislative judgments. Beauharnais v. Illinois, 343 U.S.

250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). Even if the court questions the

wisdom of legislation or of its efficacy, the court would not be at liberty to

erect those doubts into fundamental law. Jd., 343 U.S. at 266, 72 S.Ct. at

735.

In the instant case, there is a rational basis supporting the

classification that statutory county citizens do not have the power of

initiative or referendum. Moreover, the Petitioners’ right to equal

protection guaranteed under the Fourteenth Amendment to the U.S.

Constitution has not been violated by the actions of the Mesa County.

C Where the citizens of a State have reserved the power of

initiative as to iegislative matters, the legislature of that

State does not violate the Equal Protection Clause by

delegating authority over certain of those legislative

matters to county governments, some of which counties

are prohibited from allowing ballot initiatives, thereby

depriving the residents of those counties of the power of

initiative, while that power is freely exercised by residents

of other counties.

The Petitioners argue that Article V, Section 1(9) of the Colorado

Constitution is a violation of the Equal Protection Clause due to the

perceived delegation of legislative functions to statutory counties, and the

resulting application of Article V, Section 1(9) as applied to statutory

counties. An “as applied” challenge is an assertion that a provision, statute

or constitutional section, “is unconstitutional as applied to a particular

plaintiff's speech activity, even though the statute may be valid as applied

to other parties”. Citizens for Responsible Government State Political

Action Committee v. Buckley, 60 F.Supp.2d 1066 (D.Colo 1999). The “as

applied” challenge “is subject to a case-by-case analysis to determine

whether the statute as applied to the facts of the case abridges the First

Amendment.” Id.; City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.

750, 759, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Legislative acts,

whether citizen initiated or legislatively enacted, are presumed to be

constitutional. Citizens v. Buckley, supra; Villanueva v. Carere, 85 F.3d

481 (10" Cir. 1996); see also National R.R. Passenger Corp. v. Atchison

Topeka and Santa Fe Ry. Co., 470 U.S. 451, 105 S.Ct. 1441, 84 L.Ed.2d

432 (1985). “The [p]laintiffs face a ‘heavy burden’ to show that the statute

can never be applied constitutionally.” Citizens v. Buckley, 60 F.Supp. at

1073; citing Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114

L.Ed.2d 233 (1991).

Without specifying statutory previsions, the Petitioners challenge

Article V, Section 1(9) due to the actions of the Colorado State Legislature

in adopting various laws which delegate responsibilities to statutory

counties. This is a broad-based challenge to the statutory structure of

Colorado law. Irrespective, a statute or constitutional provision is

presumed to be constitutional. Walters v. National Association of

Radiation Survivors, 468 U.S. 1323, 105 S.Ct. 11, 82 L.Ed.2d 908 (1984);

Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979);

Branson School District RE-82 v. Romer, 161 F.3d 619 (10" Cir. 1998).

In light of the presumption Article V, Section 1(9) of the Colorado

Constitution may not be invalidated if there is some “fairly possible”

construction that would confirm the constitutionality of the Section.

Branson v. Romer, 161 F.3d at 636; See Communications Workers v. Beck,

487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988).

In support of their argument that the delegation of legislative

functions has made Colorado Constitution Article V, Section 1(9) violate

the equal protection clause of the Fourteenth Amendment, the Petitioners

draw the classification for the equal protection argument between statutory

counties and home rule counties. However, this classification is flawed.

The appropriate classification should be between political subdivisions of

the State of Colorado with some sovereign authority, and political

subdivisions of the State of Colorado without sovereign authority.

Political subdivisions of the State of Colorado with some sovereign

authority include: cities; towns; municipalities; home rule cities; home rule

cities and counties; and, home rule counties. Political subdivisions of the

State of Colorado without sovereign authority include: statutory counties;

school districts; special districts (e.g. fire protection districts, metropolitan

districts, park and recreation districts, sanitation, water and sanitation, or

water districts, tunnel districts); local improvement districts; and, public

improvement districts. All political subdivisions of the State of Colorado

engage in some legislative functions.

Legislative functions are wide and varied. A legislative function is

“(t]he duty to determine legislative policy; [t]he duty to form and

determine future rights and duties.” BLACK’s LAW DICTIONARY 911 (7" ed.

1999). Legislative functions include: taxation, Missouri v. Jenkins, 495

U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 717 (1989); the decision to exercise

the power of eminent domain, First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987); budget formulation and contracting, Board

of Estimate of City of New York v. Morris, 489 U.S. 688, 109 S.Ct. 1433,

03 L.Ed.2d 717 (1989); levying of general and special taxes, the directing

and controlling of property, and the settling of all claims, Holder v. Hall,

512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994); and, the ordering of

competing social policies, Sorenson v. Secretary of the Treasury of the

United States, 475 U.S. 851, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986).

All non-sovereign political subdivisions of the State of Colorado

are able to exercise the legislative function of eminent domain: statutory

counties (C.R.S. §30-11-104); school districts (C.R.S. §22-32-11] ); special

districts (e.g. fire protection districts, (C.R.S. §32-1-1002), metropolitan

districts (C.R.S. §32-1-1004), park and recreation districts (C.R.S. §32-]-

1005), sanitation, water and sanitation, or water districts (C.R.S. §32-]-

1006), tunnel districts (C.R.S. §32-1-1008)); local improvement districts

(C.R.S. §30-20-512); and, public improvement districts (C.R.S. §30-20-

512). Even prior to 1910, political subdivisions of the State of Colorado

without sovereign authority, other than counties, were engaged in the

legislative function of eminent domain. In Kirkwood v. School Dist. No. 7

in Summit County, 45 Colo. 368, 101 P. 343 (1909), the Summit County

School District No. 7 exercised its legislative power through eminent

domain. The Court determined that “the question of the location of a

school site, and the necessity of taking land therefor, not in excess of one

acre, is vested entirely in the school authorities of a district, and the

necessities of the district in this respect are not questions for a commission

or jury to determine.” /d., at 370.

Likewise, counties in Colorado were engaging in legislative

functions, such as taxation and settlement of claims. In Roberts v. People,

9 Colo. 458, 467, 13 P. 630, 635, (1887), the Colorado Supreme Court

Stated: ©

The county of Arapahoe, like every other organized county

in the state, is made by statute a body corporate and politic,

and, like other corporations, it can only act by its officers

and agents. The board of county commissioners is

authorized by law to represent the county, and act for it in

the settlement of all accounts of receipts and expenses, and

in the allowance of accounts chargeable against the county.

This board is authorized to issue orders on the county

treasurer for the payment of the accounts so allowed and it

is made the duty of the latter officer to pay the same out of

the county money. (Citation omitted.) The board of county

commissioners, therefore, is constituted by law the

financial representative of the county, to whom all

unliquidated claims against the county are to be presented

for allowance. No other officer or agent of the county is

invested with similar powers; and the presentation of a

claim to this board, the allowance of which comes within

the scope of its powers, is practically a presentation thereof

to the county.

In Board of Comm’rs of Garfield County v. Leonard, 3 Colo.App.

576, 580, 34 P. 583, 585 (1893), the Court of Appeals stated that the

county commissioners are invested with full and sole power to manage the

business affairs of the county. “They are necessarily vested with

reasonable discretion in the administration of county affairs.”

Finally, it is well established that the exercise by a state of the

discretion accorded to it in structuring its internal political subdivisions is

subject to judicial review under the Fourteenth Amendment only where

that exercise involves the infringement of fundamental rights or the

creation of suspect classifications. Baldwin v. City of Winston-Salem,

N.C., 710 F.2d 132 (4" Cir. 1983). In this case, there is no fundamental

right of initiative and referendum. Kelly v. Macon-Bibb County Board of

Elections, supra; see Grant v. Meyer, supra. The actions of the Colorado

La rig as AB 90 ols

PRS) aOR, PO Re

Legislature in adopting various laws which determine the structure of

statutory counties does not invalidate the Colorado Constitution.

Moreover, the interpretation made by Mesa County and the Colorado

Courts that statutory counties do not have the power of initiative and

referendum applies to all persons similarly situated. The “fairly possible”

construction of Article V, Section 1(9) of the Colorado Constitution is that

the power of referendum and initiative was simply not reserved to the

citizens of statutory counties by the Colorado people. Thus, Article V,

Section 1(9) of the Colorado Constitution has a “fairly possible”

construction and is clearly constitutional under the United States

Constitution.

IV. CONCLUSION

The Petition for Writ Of Certiorari to the United States Supreme

Court does not present a compelling reason for review by this Court.

There is no fundamental right to initiative found in the United

States Constitution. The fact that the citizens of the State of Colorado did

not include counties within purview of Article V, Section 1 of the

Colorado Constitution does not violate the Equal Protection clause.

Moreover, the Equal Protection Clause does not mandate that the State of

Colorado provide the power of initiative to the citizens of all political

subdivisions within the State.

Therefore, Mesa County respec “ully requests Supreme Court of

the United States deny the Petition for Writ of Certiorari.

RESPECTFULLY submitted this 11" day of June, 2002.

MESA COUNTY ATTORNEY’S OFFICE

Assistant Mesa County Attorney

P.O. Box 20,000-5004

Grand Junction, CO 81502

(970) 244-1612

APPENDIX

279 F.3d 1204 (Cite as: 279 F.3d 1204)

United States Court of Appeals,

Tenth Circuit.

SAVE PALISADE FRUITLANDS, a Colorado unincorporated nonprofit

association;

Harry C. Talbott; Galen R. Wallace; Allen M. (Mac) Williams, Plaintiffs-

Appellants,

Monika TODD, in her official capacity as County Clerk of Mesa County,

Colorado; Mesa County Board, Defendants-Appellees.

No. 00-1423.

Feb. 7, 2002.

Richard W. Daily, (Stephen K. ErkenBrack, with him on the briefs), Hale

Hackstaff Tymkovich & ErkenBrack, L.L.P., Denver, CO, for Appellants.

Valerie J. Robison, Assistant Mesa County Attorney, (M. Lyle Dechant,

Mesa County Attorney, with her on the brief), Mesa County Attorney’s Office,

Grand Junction, CO, for Appellees.

Before TACHA, Chief Judge, GARTH, [FN*] and BRISCOE, Circuit Judges.

EN* The Honorable Leonard I. Garth, Senior Circuit Judge, United States

Court of Appeals for the Third Circuit, sitting by designation.

TACHA, Chief Judge.

Appellants Save Palisade FruitLands and three of its members brought this suit

under 42 U.S.C. § 1983, after the Mesa County Clerk, appellee Monika Todd,

denied appellants’ request to place a land-use proposal on the ballot as a

county-wide initiative. Appellants argued that Colorado law, which grants the

power to initiate legislation to the electors of home rule counties, but not to those

of statutory counties, violates the Equal Protection Clause of the Federal

Constitution. The United States District Court for the District of Colorado

concluded that there was no denial of equal protection, and it therefore granted

Todd's motion for summary judgment. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRM.

I. Background

A. The Structure of the Colorado Initiative.

In 1910, the people of Colorado adopted article V of the Colorado Constitution and

reserved the powers of initiative and referendum. Byrne v. Title Bd., 907 P.2d 570,

576 (Colo.1995) (en banc) (Mullarkey, J., dissenting). Article V, subsection 1(2)

of the Colorado Constitution provides in part that "[t]he first power hereby reserved

by the people is the initiative.” Article V, subsection 1(9) further clarifies the scope

of this reserved power: "The initiative and referendum powers reserved to the

people by this section are hereby further reserved to the registered electors of every

city, town, and municipality as to all local, special, and municipal legislation of

every character in or for their respective municipalities."

The Colorado Constitution does not explicitly reserve the right of initiative at the

county level. In general, counties in Colorado are simply political subdivisions of

the state government that possess only those functions that are granted to them by

the constitution or by statute, along with implied powers necessary to carry those

functions out. Pennobscot, Inc. v. Bd. of County Comm'rs, 642 P.2d 915, 918

(Colo. 1982) (en banc); Dellinger v. Bd. of County Comm'rs, 20 P.3d 1234, 1237

(Colo.Ct.App.2000). Colorado courts have rejected any argument that the general

reservations of power in article V, subsections 1(1) and 1(2) might be construed to

grant county governments the power to provide for initiatives. Dellinger, 20 P.3d

at 1237-38 (considering, and then rejecting, various arguments that would authorize

and require counties to provide for initiatives); see also County Rd. Users Ass'n v.

Bd. of County Comm'rs, 987 P.2d 861, 863 (Colo.Ct.App.1998) (noting in dicta that

"the power of initiative and referendum is not generally reserved to the electors as

to county governments"), rev'd og other grounds, 11 P.3d 432 (Colo.2000) (en

banc). [FN1]

FN1. When presented with a question of Colorado law that the Colorado

Supreme Court has not resolved, our task is to predict how that court would

rule on the issue. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574

(10th Cir.1984). In carrying out this task, "[w]e must also follow any

intermediate state court decision unless other authority convinces us that

the state supreme court would decide otherwise." Jd.; see also Comm’r v.

Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).

Appellants have provided us with no persuasive reason to conclude that the

Colorado Supreme Court would reach a decision contrary to Dellinger,

which we therefore follow as Colorado law.

The constitutional scheme is complicated, however, by statutory grants of the

initiative power to the electors of county governments in limited contexts. In some

instances, this grant is given to the electors of all counties with respect to specific

types of legislation. [FN2] Colorado also distinguishes between statutory counties

and home rule counties with respect to the power to initiate general legislation, and

this distinction is the central focus of this litigation.

FN2. For example, electors may initiate legislation regarding county sale

and use taxes, and for the creation of public improvement districts.

Colo.Rev.Stat. §§ 29-2-104, 30-20-505.

All counties in Colorado are initially created as "statutory" counties. These

counties perform basic governmental functions such as managing the property of

the county, maintaining streets and street lighting, creating mass transit, and making

limited contracts for the fulfillment of these functions. Colo.Rev.Stat. §

30-11-101(1). A statutory county is governed by a board of county commissioners,

who are constitutional officers elected in accordance with article 14, section 6 of

the Colorado Constitution. The board has several specifically enumerated powers,

such as levying taxes and providing for the maintenance of county buildings.

Colo.Rev.Stat. § 30-11-107. It also has the power to control the zoning of land not

incorporated into cities. Colo.Rev.Stat. § 30-28-102.

However, the Colorado Constitution provides a procedure for "statutory" counties

to become "home rule” counties and thereby assume a greater degree of

self-goverment. Colo. Const. art. XIV, § 16. To become a home rule county, a

statutory county must adopt a home rule charter, which must be approved by a vote

of the electors in the county. Jd. While statutory counties have government

structures that are specifically delineated in the state constitution, home rule

counties are largely freed from these constitutional dictates. Bd. of County Comm'rs

vy. Andrews, 687 P.2d 457, 458 (Colo.Ct.App. 1984) (noting that article XTV, section

of article XTV of the constitution, which set forth the type of officers who shall be

elected in each county and how to choose and compensate them). While a home rule

county still "must do the things that all counties must do and must provide the

services all counties must provide,” id., there are numerous provisions in the

Colorado statutes that either allow home rule counties to expand upon the powers

already granted to statutory counties or grant home rule counties new powers

altogether. For example, home rule counties have broader powers to incur

indebtedness than statutory counties have. Compare Colo.Rev.Stat. § 30-35-201(6

(specifying procedures for home rule counties to incur general debt), with

Colo.Rev.Stat. § 30-11- 107(1)(dd) (allowing statutory counties to incur debt to

finance energy-saving measures). Home rule counties have the power to provide

for "public concerts and entertainments” and may advertise to attract tourists, id. §

30-35- 201(3), (4), while statutory counties have no similar powers. These are but

examples, and many other differences are apparent from even a cursory comparison

of sections 30-35-201 and 30-11-107.

Among these many differences is the scope of the power of initiative. The electors

of statutory counties in Colorado may only initiate legislation with respect to a very

limited range of issues. E.g., Colo.Rev.Stat. 29-2-104. Home rule counties, by

contrast, are statutorily required to provide for the initiative and referendum of all

measures under the same strictures required for statewide ballot measures.

Col.Rev.Stat. § 30-11-508. The difference in this grant of powers is what gives rise

to this litigation.

B. Save Palisade FruitLands

Mesa County, Colorado is a statutory county situated on the border of Colorado

and Utah. It contains several cities, including Palisade, Fruita, and the largest city

in the county, Grand Junction. It is famous for its fruit production, especially in the

eastern areas of the county. Land use in the county is governed by the Mesa County

Planning Commission, which adopts land codes governing zoning and the

divisibility of property.

Appellant Save Palisade FruitLands ("Save Palisade") is an unincorporated

nonprofit association comprised of registered voters in Mesa County. Appellants

Harry Talbott and Allen Williams are peach growers, and Galen Wallace is a

viticulturist. All three are members of Save Palisade. [FN3] Throughout the 1990s,

they and other farmers tried to halt the encroachment of residential subdivisions in

Mesa County by attempting to place greater restrictions upon the ability of

landowners to subdivide their property. After years of having their efforts rejected,

and after several contentious public meetings debating the utility of such measures,

Save Palisade and various farmers attempted to place a measure on the Mesa

County ballot that would restrict the ability of landowners to subdivide their land.

On November 16, 1999, Monika Todd, the Mesa County Clerk, refused to place the

proposed initiative on the ballot. Todd indicated that she could find no

authorization for countywide initiatives in a statutory county such as Mesa County.

FN3. For this reason, we will, for simplicity’s sake, sometimes refer simply

to Save Palisade as the appealing party.

Save Palisade then brought suit against Todd and the Board of County

Commissioners of Mesa County in the United States District Court for the District

of Colorado. The court granted the defendant’s motion for summary judgment

shortly after the Colorado Court of Appeals issued its ruling in Dellinger v. Board

of County Commissioners, 20 P.3d 1234, 1237-38 (Colo.Ct.App.2000), which held

that the Colorado Constitution did not authorize the electors of statutory counties

to initiate legislation. Save Palisade then sought to have the measure certified as a

statewide ballot initiative. On December 6, 2000, the Ballot Title Setting Board

determined that the measure was not a "statewide" measure, and it therefore refused

to place the initiative on the ballot.

Appellants then brought this appeal, claiming that by granting the power of

initiative to the electors of home rule counties but not to those of statutory counties,

the Colorado courts denied the electors of statutory counties the equal protection

of the laws.

Il. Discussion

A. Standard of Review

We review the district court’s grant of summary judgment de novo, applying the

same legal standard used by the district court. Wark v. United States, 269 F.3d

1185, 1187 (10th Cir.2001). Summary judgment is proper only if the evidence,

reviewed in the light most favorable to the party opposing the motion, demonstrates

that there is no genuine issue as to any material fact, and that the moving party is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

B. The Appropriate Level of Fourteenth Amendment Scrutiny

Save Palisade argues that Colorado’s decision to provide the initiative power to

home rule counties but not statutory counties is subject to strict scrutiny under the

Fourteenth Amendment's Equal Protection Clause. U.S. Const. amend. XIV, § 1

("No state shall ... deny to any person within its jurisdiction the equal protection of

the laws."). If strict scrutiny applies, Colorado's statute must be narrowly tailored

to further a compelling government interest. Goetz v. Glickman, 149 F.3d 1131,

1140 (10th Cir.1998). If no heightened scrutiny applies, the statute need only be

rationally related to a legitimate government purpose. Kinnell v. Graves, 265F.3d

1125, 1128 (10th Cir.2001). We subject gcvernmental classifications to strict

scrutiny under the Equal Protection Clause only if they target a suspect class or

involve a fundamental right. Goetz, 149 F.3d at 1140.

1. Suspect Class

When legislation categorizes persons based on suspect classifications, such as race

and national origin, we apply strict scrutiny. Okla. Educ. Ass'n v. Alcoholic

Beverage Laws Comm'n, 889 F.2d 929, 932 (10th Cir.1989). When legislation

categorizes persons based on "quasi-suspect” classifications, such as gender and

illegitimacy, we apply intermediate scrutiny. Jd. Finally, when legislation

categorizes persons on the basis of a non-suspect classification, we apply rational

— i » ;

Oe ee a Te ee ee ee a ee

basis review. /d. In deciding whether to recognize additional classifications as

suspect, courts traditionally look to see if the classification is "based on

characteristics beyond an individual’s control,” id., and whether the class is "saddled

with such disabilities, or subjected to such a history of purposeful unequal

treatment, or relegated to such a position of political powerlessness as to command

extraordinary protection from the majoritarian political process." San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28,93 S.Ct. 1278, 36 L.Ed.2d 16(1973).

The classification here is statutory counties, in contrast to home rule counties, and

citizens of the two types of counties are treated differently in Colorado. Status as

a statutory county, however, has not been recognized as a suspect or quasi-suspect

classification. Moreover, citizens of statutory counties lack the characteristics of

a suspect class. Jd. Being a statutory county is not a characteristic beyond Mesa

County’s control, as it can choose to become a home rule county. Cf. Okla. Educ.

Ass'n, 889 F.2d at 932. Mesa County’s citizens are free to work to effect this

change. Neither the county nor its citizens claim to suffer disabilities, have a

history of unequal treatment, or be politically powerless. Cf. Rodriguez, 411 U.S.

at 28, 93 S.Ct. 1278. Thus, Save Palisade and its members are not entitled to

heightened scrutiny on the basis of a suspect classification.

2. Fundamental Rights

Even though citizens of statutory counties are not a suspect class, we will still

apply strict scrutiny if the state’s classification burdens the exercise of a

fundamental right guaranteed by the U.S. Constitution. Okla. Educ. Ass'n, 889 F.2d

at 932. Save Palisade argues that its inability to bring an initiative in Mesa County

burdens its members’ fundamental constitutional rights to free speech and to vote.

10a

McIntyre v. Ohio Electi ommn, 514 U.S. 334, 336 n. 1, 115 S.Ct. 1511, 131

L.Ed.2d 426 (1995) (acknowledging that free speech is a fundamental right);

Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)

(acknowledging that the right to vote is a fundamental right).

Here, there are two contexts within which the appellants’ rights to free speech and

to vote arguably could be implicated. First, it could be argued that the fundamental

rights to speech and to vote are implicated within a broader right to bring an

initiative, and that the power of initiative is therefore a fundamental right.

However, nothing in the language of the Constitution commands direct democracy,

and we are aware of no authority supporting this argument. In fact, every decision

of which we are aware has held that initiatives are state-created rights and are

therefore not guaranteed by the U.S. Constitution. E.g., T. rs United for

nt Cuts v. Austi 2d 291,2 ir.1993) (citing Meyer v. Grant,

486 U.S. 414, 424, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)); Kelly v. Macon-Bibb

County Bd. of Elections, 608 F.Supp. 1036, 1038 & n. 1 (M.D.Ga.1985). We agree

with these courts’ reasoning and reject this argument.

Second, it may be argued that regulations on the power of initiative violate the

fundamental rights to free speech and to vote. It is true that the constitutionally

guaranteed rights of free speech and voting may be implicated by attempts to

regulate initiative schemes. See, e.g., Meyer, 486 U.S. at 424-25, 108 S.Ct. 1886.

The mere fact that the state created a right to an initiative process in home rule

counties, however, does not require that an initiative process be granted to all

political subdivisions or with respect to all subjects. Skrzypczak v. Kauger, 92 F.3d

1050, 1053 (10th Cir.1996) ( "[Plaintiff’s] right to free speech in no way depends

on the presence of [her initiative] on the ballot. Moreover, she cites no law, and we

lla

find none, establishing a right to have a particular proposition on the ballot."). In

other words, the right to free speech and the right to vote are not implicated by the

state’s creation of an initiative procedure, but only by the state’s attempts to regulate

speech associated with an initiative procedure, which is not the case here. [FN4]

There is no initiative scheme in place in statutory counties, so there cannot be an

unlawful attempt to regulate that scheme.

EN4. Other courts have agreed with this analysis. In Kelly, for example, the

plaintiffs brought an equal protection claim, alleging that their right to vote

was burdened by procedural restrictions on their right to bring a

referendum. 608 F.Supp. 1036. The court rejected this argument, holding

that it was "not a Tight to vote’case” as plaintiffs asserted, but a referendum

case, and that referenda "are not constitutionally compelled." Jd. at 1038.

The court further noted that the Constitution protects the right to vote in a

general election, which is part of the right to representative democracy. Jd.

at 1038 n. 1. By contrast, the court stated, initiatives and referenda are

expressions of direct democracy that are not guaranteed by the

Constitution. Jd. Thus, alleging a violation of free speech or voting rights

does not transform what is essentially an initiative case into a voting rights

case, and thereby trigger strict scrutiny. See also Stone v. City of Prescott,

173 F.3d 1172, 1175-76 (9th Cir.1999) (finding that the First Amendment

is not implicated when the plaintiffs challenge the scope of the referendum

right rather than challenging regulations on the exercise of that right).

The cases that Save Palisade cites in support of its argument are inapposite. First,

none of these cases involves an equal protection claim. Second, and perhaps most

important, all of these cases involve situations where a political subdivision had

12a

already been granted the power of initiative and the state attempted to regulate the

speech associated with the initiative process. For example, in the primary First

Amendment case cited by appellants, Meyer v. Grant, the Court struck down a law

banning payments to petition circulators. Unlike the instant case, however, Meyer

involved a situation where the state had already granted electors the power of

initiative. 486 U.S. at 424, 108 S.Ct. 1886. Moreover, the Meyer Court struck

down the law not because of anything unique to an initiative scheme, but rather

because it limited the number of messengers available to spread core political

speech. /d. at 422-23, 108 S.Ct. 1886.

The other free speech case cited by Save Palisade, Buckley v. American

Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599

(1999), is likewise distinguishable. There, the Court held that a state’s requirement

that circulators of initiative petitions wear name badges infringed upon the

circulators’ rights to anonymous free speech. Jd. at 199-200, 119 S.Ct. 636. Like

Meyer, Buckley involved an unconstitutional regulation of speech that happened to

occur in the context of an existing initiative scheme.

Meyer and Buckley thus establish that, "where the people reserve the initiative or

referendum powei, *’ic exercise of that power is protected by the First Amendment."

Stone, 173 F.3d at 1175 (9th Cir.1999); see also Austin, 994 F.2d at 296-97

("Unlike the challenged provisions in Meyer, Michigan’s initiative system does not

restrict the means that the plaintiffs can use to advocate their proposal."). They do

not establish that when the power of initiative is created for one political

subdivision, it must necessarily be created for all political subdivisions. [FN5] The

Colorado Court of Appeals determined in Dellinger that the citizens of Colorado

have not reserved the power of the initiative as to statutory counties, and that

l3a

statutory counties therefore do not have the power of initiative. Because we are

unpersuaded that the Colorado Supreme Court would disagree, we follow the

Dellinger court’s determination of state law. Comm’r v. Estate of Bosch, 387 U.S.

456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Daitom, Inc. v. Pennwalt Corp..

741 F.2d 1569, 1574 (10th Cir.1984). [FN6] Because there is no petition process

being regulated, and because there is no federal right to have such a process created,

we find that the Meyer and Buckley analysis provides no basis for strict scrutiny.

ENS. It is worth noting the potentially broad remedy that petitioners seek.

If we are required to apply strict scrutiny to Colorado’s decision to grant the

electors of statutory counties the power of initiative, then presumably we

would be forced to apply the same level of scrutiny to school boards, fire

districts, administrative agencies, and a host of other decision-making

bodies whose decisions cannot, under the present scheme, be changed by

direct democracy. We decline to make a ruling with such far- reaching

implications.

FN6. Appellants repeatedly advance the proposition that Colorado’s gradual

delegation of legislative powers to counties represents an attempt to

constrict the people’s reserved powers in the constitution. In appellants’

view, the increased role of county government effectively has resulted in

the deprivation of citizens’ right to initiate legislation on issues that

previously would have been handled at the state level, and as such, would

have been subject to the initiative. .

The Colorado Court of Appeals addressed and rejected this precise

argument in Dellinger, 20 P.3d_ 1234, 1237-38 (Colo.App.2000). and

appellants’ argument has not persuaded us that the Colorado Supreme Court

l4a

would rule otherwise. Appellants do not explicitly argue that the scope of

the initiative process may not be constricted once granted without violating

the federal Constitution. As such, we leave the alleged constriction of the

right to initiative to state courts.

Nor are the "right-to-vote" cases cited by petitioner any more persuasive. These

cases establish conclusively that” the right to vote in an election is protected by the

United States Constitution against dilution or debasement.’ " Hellebust v.

Brownback, 42 F.3d 1331, 1333 (10th Cir. 1994) (quoting Hadley v. Junior College

Dist., 397 U.S. 50, 54, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970)). They do not establish

that every political subdivision must decide questions in the exact same manner.

Reynolds v. Sims, the first case cited by appellants, dealt with a situation where

legislative districts were apportioned with grossly disproportionate numbers of

voters in each district. 377 U.S. 533, 537-53, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

As a result, individual voters in districts with small numbers of citizens effectively

had disproportionate representation in the state House and Senate as compared to

voters in districts with large numbers of voters. See also Gray v. Sanders, 372 U.S.

368, 379-80, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (invalidating Georgia primary

scheme where candidates were selecied under a "county unit" system that

effectively weighted rural votes more heavily than urban votes). The other case

cited by appellants, Bush v. Gore, 531 "'.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388

(2000), involved a situation where | .iiots for a statewide post from different

cuunties were recounted under disparate standards, raising the possibility that voters

who cast identical ballots would have their votes treated differently when choosing

electors for president. Jd. at 106-09, 121 S.Ct. 525.

15a

Both of the cases Save Palisade cites thus involve situations where two or more

classes of voters cast votes on the same issue or for the same office, and one class’s

votes were effectively diluted. That is simply not the case here. While voters in

home rule counties may have the ability to vote directly on county-wide measures

affecting their own county--an ability not shared by their statutory county

analogues--this in no way dilutes the votes of the electors of statutory counties. The

reason is simple: Unlike the voters in Bush and in Reynolds, the voters in statutory

and home rule counties never have their votes weighed differently on the same

question. A statewide ballot is the only opportunity for true comparison. When that

occurs, all voters, whether they reside in statutory or in home rule counties, are

given an opportunity to vote. We can find no burden on a fundamental right to vote

under such a scheme.

Like the appellant in Skrzypczak v. Kauger, Save Palisade and its members are still

free to express their view that Mesa County’s land use process needs to be changed,

and they have thus suffered no burden on their right to free speech. 92 F.3d 1050

1053 (10th Cir.1996) ("[T]he Oklahoma Supreme Court has not prevented

Skrzypczak from speaking on any subject. She is free to argue against legalized

abortion, to contend that pre-submission content review of initiative petitions is

unconstitutional, or to speak publicly on any other issue.”). Nor have their rights

to vote been diluted with respect to any other citizens of Colorado. Therefore, no

fundamental right has been burdened.

C. Rational Basis Review

Having decided that the category created by Colorado infringes upon no federal

fundamental right, [FN7] and having found no suspect classification, we evaluate

l6a

Colorado’s allocation of the power of initiative under minimal scrutiny. Under this

standard, the classification need only bear a "rational relation to some legitimate

end to satisfy the Equal Protection Clause." Kinnell v. Graves, 265 F.3d 1125, 1128

(10th Cir.2001) (quoting Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134

L.Ed.2d_ 855 (1996)). We examine the statute to ensure that the state has

sufficiently “treat[ed] like cases alike," and we will not act to keep a state from

"treat[ing] unlike cases accordingly." Crider v. Bd. of County Comm'rs, 246 F.3d

1285, 1288 (2001) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532

(10th Cir. 1998)).

FN7. We would again reiterate that any potential right to an initiative is

created at the state level only and does not involve a federal right.

Colorado courts have clearly stated that this right does not exist at the

statutory county level, see supra, and we accept that construction of the

Colorado Constitution. Any complaint that a state right has somehow been

diluted or that the Colorado Court of Appeals has "re-written the Colorado

constitution" must be directed to the Colorado Supreme Court.

Appellants ask us to compare apples and oranges when comparing home rule and

statutory counties. As noted at the outset of this opinion, home rule counties have

a broader range of powers than statutory counties. Moreover, home rule counties

were created in order to give citizens of unincorporated areas a greater degree of

autonomy in local affairs than they previously enjoyed. Both of these

ends--facilitating a broader degree of powers and enhancing local autonomy--are

legitimate government purposes. Granting the power of initiative to home rule

counties and not statutory counties could advance both of these ends, and is

therefore rationally related to either purpose.

17a

It appears from a single mention in appellants’ brief that the citizens of Logan

County voted to place term limits on its Board of Commissioners. This does not

change our analysis. One isolated, unchallenged incident in which the electors of

one statutory county enacted legislation by an initiative does not give rise to an

equal protection violation. We also cannot help but observe that the Logan County

initiative was voted on in 1998, at least two years before the Colorado Court of

Appeals’ decision in Dellinger. Thus, at the time of the Logan County initiative,

there was no controlling legal authority that clearly forbade statutory counties from

enacting legislation through an initiative process. Absent evidence that such

initiatives are still occurring in some statutory counties in the face of what is now

clear legal authority from the Colorado Court of Appeals, we refuse to find that

Colorado is enforcing its laws in an arbitrary or irrational manner in violation of the

Equal Protection Clause.

Ill. Conclusion

Appellants are still not without recourse. They can attempt to change the Colorado

statute to grant the power of initiatives to statutory counties. They can attempt to

have Mesa County adopt a home mule charter, thereby ensuring the right to initiate

legislation. However, for the reasons stated above, the Equal Protection Clause of

the Fourteenth Amendment does not command Colorado to grant the power of

initiative to the electors of statutory counties simply because it has granted that

power to the electors of home rule counties. The district court properly granted

summary judgment to appellees, and its decision is therefore AFFIRMED.

18a

20 P.3d 1234, 2000 CJ C.A.R. 5381

(Cite as: 20 P.3d 1234)

Colorado Court of Appeals, Div. V.

Daniel G. DELLINGER and Committee for Growth Limits, an unincorporated

association, Plaintiffs-Appellants,

BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF TELLER

and Connie Joiner as

Clerk and Recorder for Teller County, Defendants-Appellees.

No. 99CA0403.

Sept. 14, 2000.

Certiorari Denied April 9, 2001.

Isaacson, Rosenbaum, Woods & Levy, P.C., Edward T. Ramey, Denver, Colorado;

J. Gregory Walta, P.C., J. Gregory Walta, Colorado Springs, Colorado; American

Civil Liberties Union Foundation of Colorado, Mark Silverstein, Denver, Colorado,

for Plaintiffs-Appellants.

Sparks Willson Borges Brandt & Johnson, P.C., Christopher M. Brandt, Stephen

A. Hess, Colorado Springs, Colorado, for Defendants-Appellees.

Opinion by Judge KAPELKE.

19a

In this action for declaratory and injunctive relief, plaintiffs, Daniel G. Dellinger

and Committee for Growth Limits, appeal from the summary judgment entered in

favor of defendants, Board of County Commissioners for the County of Teller

(Board) and Connie Joiner, Clerk and Recorder for Teller County (Clerk and

Recorder). The primary issue on appeal is whether the right of initiative set forth

in Colo. Const. art. V, § 1, is applicable to, and exercisable by, the electors of

unincorporated, non-home-rule counties in Colorado. We agree with the trial court

that it is not and, therefore, affirm.

The facts are essentially undisputed. Plaintiffs, purporting to act pursuant to §

30-11-103.5, C.R.S.2000, sought to place, by petition of the electors of Teller

County (the County), a citizen initiative on the ballot in the County for the

November 1998 general election. The proposed initiative would require the

County to "place a one percent limit on the annual increase in new residential

dwelling units in unincorporated associations."

Plaintiffs’ petition did not contain the number of signatures required by Colo.

Const. art. V, § 2 for a state-wide initiative.

Although the Clerk and Recorder deemed the initiative sufficient for purposes of

§ 30-11-103.5, she nevertheless referred the matter to the Board. Reasoning that the

constitutional right of initiative did not extend to non- home-rule counties except

in certain statutorily defined contexts, the Board refused to allow the initiative to

appear on the ballot and directed the Clerk and Recorder to withhold it from the

ballot.

20a

Plaintiffs then filed this action, seeking entry of a temporary restraining order and

a preliminary injunction to compel the Board to place the initiative on the ballot.

In their motion, plaintiffs argued, as pertinent here, that the Board’s refusal to place

the initiative on the ballot violated the right of initiative reserved exclusively to the

People by Colo. Const. art. V, § 1. The court denied the motion.

Plaintiffs filed an appeal in this court and an emergency motion for mandatory

injunction, which was denied. Thereafter, they filed in the supreme court an

emergency petition for writ in the nature of mandamus and injunction pursuant to

C.A.R. 21. The supreme court denied the petition. The appeal in this court was

dismissed upon plaintiffs’ motion.

Later, the parties filed cross-motions for summary judgment in the trial court. In

defendants’ motion, they argued that the right to initiative under Colo. Const. art.

V.§ 1, was reserved "at the statewide, and also at the city, municipal or town level,

but not at the county level." Plaintiffs in their motion asserted that the defendants’

actions had been in derogation of plaintiffs’ constitutionally reserved right of

initiative under Colo. Const. art. V, § 1, and thus violated their constitutional rights

of free expression, due process, and equal protection under the United States and

Colorado Constiitions.

The court entered summary judgment in favor of defendants, finding that there was

no federal constitutional right of initiative at the state or local level, that the

Colorado Constitution did not confer a right of initiative at the county level, and

that plaintiffs’ constitutional rights had thus not been violated. This appeal

followed.

2la

Plaintiffs contend that the right and power of initiative as reserved to the People

pursuant to Colo. Const. art. V, § 1, are applicable to and exercisable by the electors

of unincorporated, non-home-rule counties in Colorado. We disagree.

Colo. Const. art. V, § 1 provides, in pertinent part:

(1) The legislative power of the state shall be vested in the general assembly

consisting of a senate and house of representatives, both to be elected by the

people, but the people reserve to themselves the power to propose laws and

amendments to the constitution and to enact or reject the same at the polls

_ independent of the general assembly and also reserve power at their own option

to approve or reject at the polls any act or item, section, or part of any act of the

general assembly.

(2) The first power hereby reserved by the people is the initiative, and signatures

by registered electors in an amount equal to at least five percent of the total

number of votes cast for all candidates for the office of secretary of state at the

previous general election shall be required to propose any measure by petition,

and every such petition shall include the full text of the measure so proposed.

Initiative petitions for state legislation and amendments to the constitution, in

such form as may be prescribed pursuant to law, shall be addressed to and filed

with the secretary of state at least three months before the general election at

which they are to be voted upon.

(9) The initiative and referendum powers reserved to the people by this section

are hereby further reserved to the registered electors of every city, town, and

22a

municipality as to all local, special, and municipal legislation of every character

in or for their respective municipalities. The manner of exercising said powers

shall be prescribed by general laws; except that cities, towns, and municipalities

may provide for the manner of exercising the initiative and referendum powers

as to their municipal legislation. (emphasis added)

referendum are not generally reserved to the electors as to county governments.”

While we agree with plaintiffs that the division’s comment in that case was dictum,

we nevertheless find it to be an accurate statement of the law.

In construing the Constitution, we must give terms their ordinary and popular

meaning. Bolt v. Arapahoe County School District No. Six, 898 P.2d 525

(Colo.1995). Further, where the language of the Constitution is plain and its

meaning clear, the language must be enforced as written. Colorado Ass'n of Public

Employees v. Lamm, 677 P.2d 1350 (Colo.1984).

Here, there is no reference to counties in Colo. Const. art. V, § 1(1) & (2).

Further, as plaintiffs acknowledge: "Nowhere—and particularly nowhere in the

‘further’ reservation of the initiative power from local governments in Article V,

section 1(9)-is there a specific reference to counties.” Plaintiffs also recognize that:

"Section 1(9) should not be read to include counties, as such a reading would

violate both the plain language and historical realities that existed at the time

Section 1(9) was adopted."

bee

23a

Each of these sections was adopted in 1910, at a time when, as plaintiffs point out,

county governments did not exercise legislative functions to any significant extent,

if at all. Thus, plaintiffs do not argue that the drafters or those who adopted these

constitutional provisions actually contemplated that the initiative and referendum

processes would extend to legislative issues at the county level, as such.

Nevertheless, plaintiffs argue that, in light of "the historical evolution of the role

and function of county governments in Colorado since 1910,” we should interpret

Colo. Const. art. V, § 1, as including a right on the part of electors to initiatives on

a county-wide basis. We are not persuaded.

A county is a political subdivision of the state, not an independent governmental

entity existing by reason of any inherent sovereign authority of its residents.

Accordingly, a county possesses only such powers as are expressly conferred by the

constitution and statutes, and such incidental implied powers as are reasonably

necessary to carry out such powers. Board ommissioners v. Love, 172

Colo. 121, 470 P.2d 861 (1970); see also Pennobscot, Inc. v. Board of County

As noted, the rights of initiative and referendum are not generally reserved to the

electors as to county governments. Colo. Const. art. V, § 1(1), (2), and (3) grant

legislative power to the General Assembly with a reservation to the People of the

powers of initiative and referendum. These reserved powers are further reserved

to the registered electors of every city, town, and municipality as to all local,

special, and municipal legislation. Colo. Const. art. V, § 1(9). They are not,

however, expressly reserved to the electors of counties, as such.

24a

By statute, though, electors of counties have been granted rights of initiative on a

county-wide basis in certain limited contexts. Section 29- 2-104, C.R.S.2000, for

example, provides for the proposal by initiative of county-wide sales tax ordinances.

Also, § 30-11-508, C.R.S.2000, requires that the charters of home-rule counties

contain procedures for the "initiative and referendum of measures.” No statutory

authorization exists, however, as to county-wide initiatives for electors in

non-home-rule counties. Nor is there any statute specifically authorizing initiatives

at the county level such as that proposed here concerning housing growth limits.

Thus, plaintiffs’ contention is not supported by the constitutional provisions, by

their underlying historical intent, or by any statutory authority.

Essentially, plaintiffs are arguing that we should interpret Colo. Const. art. V, § 1,

to authorize initiatives at the county level because the adopters of the initiative

governments would later exercise significant legislative authority and functions.

We recognize that the power of initiative "is a fundamental right at the very core

of our republican form of government." McKee v. City of Louisville, 200 Colo. 525,

616 P.2d 969 (1980). As the trial court found here, however, each Colorado elector

does in fact possess that right, albeit at the state level, pursuant to Colo. Const. art.

V.§ 1(1) and (2).

Plaintiffs urge that, because county governments today are exercising a legislative

function, as subordinate agencies of the state they could only have acquired that

power by devolution from the General Assembly. That devolution or delegation

25a

could not, they assert, be free of the right of initiative reserved to the People under

Colo. Const. art. V, § 1.

The argument has a certain ring of logic. Nevertheless, given the absence of

support in the language or historical intent of this constitutional provision, we must

reject plaintiffs’ contention.

We cannot ignore the fact that the provisions of Colo. Const. V, § 1(1), (2), and (9)

expressly authorize initiatives at the state and municipal level, but do not do so at

the county level. Nor can we ignore the fact that the General Assembly has seen

fit to provide for county-wide initiatives only with respect to home-rule counties or

as to specific, defined subjects such as the adoption of sales tax ordinances. In our

view, to interpret Colo. Const. art. V., § 1 as conferring a general right of initiative

at the county level would require a rewriting of that provision. This, of course, we

are not free to do. Pace Membership V/arehouse v. Axelson, 938 P.2d 504 (1997).

We therefore agree with the trial court's conclusion that there is no constitutional

right of initiative for electors at the county level.

In light of our disposition of this issue, we need not address plaintiffs’ contention

that the procedures in § 30-11-103.5 would govern their proposed initiative.

Plaintiffs also contend that the right of initiative as created and defined by the

Colorado Constitution implicates liberty interests that are entitled to the procedural

guarantees of the Due Process Clause of the Fourteenth Amendment. We disagree.

26a

Plaintiffs rely on Montero v. Meyer, 13 F.3d 1444 (10th Cir.1994) as supportir

their contention. Montero, however, is inapposite. That action arose from z

initiated amendment to the Colorado Constitution designating English as Coloradc

official language. The amendment had been initiated pursuant to Colo. Const. a1

V.§ 1(1) & (2), which reserves to the People the power to propose and ena

amendments to the constitution.

Here, as concluded above, there is no constitutional provision extending the pow

of initiative to the electors on a county-wide basis. Further, we note that the cou

in Montero rejected the argument that the Colorado Constitution and Colorad

statutes governing the ballot initiative created in the plaintiffs there a liberty intere

within the meaning of the Fourteenth Amendment. See also Committee for Bette

Health Care v. Meyer, 830 P.2d 884 (fn.7) (Colo.1992) ("[T]here is no feder.

constitutional right to the initiative process").

Accordingly, we perceive no error.

The judgment is affirmed.

Judge ROTHENBERG and Judge CASEBOLT concur.

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