Redress of Grievence goes to the courts

It has been almost two years of attempting to have the community’s voices heard in the controversy surrounding the County's introduction of the new Land Use Codes(LUC) which came into effect in the middle of the pandemic. Since then countless people have petitioned for a code book that is simple, well-defined, and not easily abused. The current LUC a 230-page document, full of ambiguous language that will inevitably be used however anyone with enough money wishes to use it. A case could be made ‘in favor of’ or ‘opposition to’ most issues in the code book. Opposition to this type of boilerplate zoning isn’t a statement against development in general but one of an inability to responsibly and safely make long-term decisions in a County, that is so limited by water, which can be seen particularly in the North Fork area of the County. The case could be made that the County Districts are so very different in their resources and limitations it may make sense to have a region-based planning system.

This recent referendum petition lawsuit illustrates a key point specifically. Even Statutes and Constitutional amendments that are designed to protect our rights and also provide reservations of power that keep legislative powers in check, can and will be used against us. Therefore it is our duty to exercise those rights and powers from time to time so we do not lose them. You know use it or lose it.

In, the Colorado Constitution Article V Section 1, when read by a person of Common intelligence(a legal requirement) explains that ALL laws created in Colorado are subject to the veto power reserved by the people, except those for emergency health and safety. There are no other exemptions to this, and definitely no exemptions in the case of a future where Counties are delegated the power to legislate. In fact, Article V 1(9) further reserves the right to veto all local, special, and municipal legislation of every character. You see that it is possible to use even this clear unambiguous language against us. This illustrates the same point that unlimited money can and will do strange things with words.

On February 22nd at 3:56 pm, the County updated its Land Use Codes via resolution 2024-R-03, and our members immediately set to work exercising this forgotten power of veto referendum as outlined in Article V, Section 1(1), 1(3), and 1(9) of the Colorado Constitution. This is a reservation of power, not a right and the people have reserved the right to order this process the procedures for Counties are defined by Colorado Revised Statutes CRS 30-11-103.5. Despite the clear language in these laws, our elected representative the County Clerk and Recorder, has denied us this right. The Clerk cited as the justification of this denial a single court case about the right of county electors to initiate new legislation via a similar yet very different initiative petition process. The case in question can be read here Dellinger v. BD. OF CO. COM'RS FOR TELLER, 20 P.3d 1234 (Colo. Ct. App. 2000). This Supreme Court case never once considered nor ruled on the right of a veto referendum. In fact, one cannot find a single instance where any jurisdiction has ever denied the right of veto referendum. One would assume an administrator would require the latter form of legal determination when attempting to deny a separate and distinct Constitutional Right of veto referendum. Yet, when the Dellinger courts did mention the right to initiatives and referendum the court merely stated that these rights were not generally reserved to electors of a non-home rule county. They ruled that county electors nor the Board of County Commissioners (BoCC) cannot create laws about topics that have not been granted to it to legislate on. The Dellinger petitioners were attempting to reduce housing growth to 1% per year via an initiative petition. The courts never once said that counties are exempt from this reservation of powers, yet Delta County seems to be attempting to put the burden of proof on the people, forcing them to prove they have these powers.

The case now before the court is #2024CV04 and is about a veto referendum petition directly pertaining to a piece of County made zoning legislation that was passed by the BoCC. Isn’t something general and not yet passed, it is very limited and specific to the legislative area that Counties have been granted the right, Zoning. This legislative power was granted by the General Assembly to Counties via the Land Use Enabling act CRS 29-20-104. In this statute, Congress specifically states “the power and authority granted by this section does not limit any power or authority presently exercised or previously granted.” Plainly the law states that the peoples power of veto referendum previously granted and exercised necessarily came with the County’s ability to legislate on this topic. Congress cannot grant a power it does not have and that means that it cannot skirt the checks and balances through a delegation of authority.

After many denied appeals pointing to the Clerk’s error, there was no other option but to petition the judicial branch to redress this newfound grievance. This lawsuit is another action that is protected by the Colorado Constitution in the Colorado Bill of Rights Article 2 Section 24. This action is an official petition or more specifically a remonstrance. Remonstrance: Blacks Law Dict. 2nd Ed. 1910: “A representation made to a court or legislative body wherein certain persons unite in urging that a contemplated measure be not adopted or passed.” So the three members of A4LL have united in a Constitutionally protected process to petition the courts or to remonstrate to the courts.

Now if the courts are by design, the only check to the County’s legislative power, someone failed in the design this process is too confusing, costly, and time-consuming to be the only check and balance in the county. This check might as well not exist and for most people it is not a possibility to pursue this path.

In this case, there were only two law firms, most of all the others had stated conflicts of interest, who would offer a quote and both estimated $100,000 to "go all the way,". The group decided against this path because it risked losing rights due to an inability to fundraise under the strict timelines of a civil lawsuit. As a result, pro se became a necessity. Now, the lengthy and convoluted process begins and outlined below is each step. The hope is that all this increases our experience and knowledge, serving as an inspiration for others to stand up for truth and liberty in their own jurisdictions.

Statutes and Procedures

Under CRS 30-11-103.5 In plain English states “If there's no specific process outlined by law, charter, or the state constitution for putting an initiative or referendum on the ballot through a petition by county voters, or for a county board to refer an issue to voters, then the process shall closely follow the procedures used for city initiatives and referendums as described in part 1 of article 11 of title 31, C.R.S. The county clerk and recorder will address any questions about how these procedures apply”. It is important to note that the Board of County Commissioners (BoCC) can also refer measures to the people under the same Municipal procedures. By the plain reading, these statutes mandate that counties are to proceed as nearly as practicable as municipalities when making laws. By the way, the word municipal was never defined in the Constitution. But we can look to similar court cases at the time, Commissioners of Laramie County v Commissioner of Albany 92, US 307. 1875 Which states, “Counties, cities, and towns are municipal corporations, created by the authority of the legislature; and they derive all their powers from the source of their creation, except where the constitution of the State otherwise provides.” Funny enough, this 150-year-old court case still stands today as precedential. The Clerk also attempted to use the word municipal in her reading of the procedures to deny the petitioners this fundamental right. Even though the law states these rules must be followed as nearly as practicable. It is assumed this clause was due to address the future possible confusion when county officials are using municipal procedures.

Title 31 which is the municipal procedures for referendum and initiatives states: “It is the intention of the general assembly to set forth in this article the procedures for exercising the initiative and referendum powers reserved to the municipal electors in subsection (9) of section 1 of article V of the state constitution. It is not the intention of the general assembly to limit or abridge in any manner these powers but rather to properly safeguard, protect, and preserve inviolate for municipal electors these modern instrumentalities of democratic government.” Clearly this process was put in place to uphold our rights and not hinder them. “

The next step to begin a referendum is to look to CRS 31-11-105 which provides the definition for a veto referendum. It is also important to note that all zoning changes no matter the size of the parcel are legislation, as administrative acts are exempt from referendum. Therefore, all zoning is subject to a veto referendum, the only exception is when laws a for emergency health and safety of the public, and zoning is never an emergency.

Within 30 days(the timeline allowed) of the County’s publishing of the LUC, petitioners circulated and filed a petition containing 1406 signatures. This was actually accomplished in just 7 days in Delta County which is a feat in itself. The petitioners followed the laws outline in CRS 31-11-105. During this time the Clerk decided to make a Constitutional determination that Delta County Electors did not possess this right and denied the petition, not just at the end it was every step of the way.

Court Case and Timeline

With no other options for redress, they filed the first complaint and served it to all parties on April 19th, 2024, within the 28-day window of the final agency decision from the Clerk’s office which was on March 26, 2024. This now begins the series of strict time requirements and procedures of a Court Case.

Instead of handling this in house, the county decides to hire one of the most expensive legal firms in the State “Hall and Evans, LLC” and they immediately threaten the plaintiffs with their legal fees. The Defense claims the suit is frivolous and without grounds and the electors should have known better than to dare question the judicial determinations of a County Clerk, who has no law degree that anyone is yet are aware of.

Rather than respond to the complaint directly, the defense filed this motion to dismiss. The document is complex and lengthy but mainly makes the claim that electors have no right to challenge the BoCC’s resolution, no right to challenge a decision and the courts do not even have this right to challenge the county officials actions. Strange, as this issue is about a right of referendum being denied and no longer very much about the LUC or any other issues at all.

However, the motion did allow for additional information and the Plaintiffs decided to fix these errors and refined it to a more narrow question. “Did the Clerk make an error in her determination that this petition was invalid?” If so please send this back to the Clerk and try to follow as nearly as practicable the Municipal procedures in the Statutes.

This is now known as, First amended Complaint was filed on the 6th of June 2024. It seems silly but a typo was noticed, to fix the word County in the place of Municipal. The plaintiffs must file a motion to fix a typo this is the Fixed Complaint , this was approved by the court and deemed the 2nd amended complaint on June 27th, 2024.

In an attempt to save extra cross-motions and due to further research on this topic the plaintiffs wanted to add a few items and also remove some of the requests for relief. So they filed for a Third Motion to Amend the Complaint and sent what is now viewed as the final Third Amended Complaint. Well, unfortunately, this did not prove to save any time, and two motions of dismiss were filed by the Defendants legal counsel. One for the 2nd amended complaint and then an amended motion to dismiss addressing the 3rd amended complaint. Are you still following along??

The next step is a final proofreading of an official response to the Defendants motion to dismiss. It is anticipated to be filed the week of August 12th, 2024. This will then await the first ruling from the judge to determine if our question has merit. If the ruling is against the Plaintiffs they will be required to officially Appeal this decision to the higher courts. This is to important a topic to not be heard as fundamental question on the nature of checks and balances for county legislation, there could be no more meritorious question to ask.

After months of research, it is clear that the fundamental right to a veto referendum is much more broad than the right to initiative. The County Statutes actually require the BoCC to refer measures to vote on topics like; District and Lodging Tax changes, Increasing the number and the way Commissioners are elected, and Home Rule Charter and Commission creation. There is even an instance in the County Codes that states bond resolutions “shall not be subject to the referendum provisions of any law” CRS 30-26-403. All other topics fall under the Municipal procedures and the BoCC can refer any laws they create to a vote via CRS 31-11-111. There would be no reason to have a law that states that bond issues shall not be subject to our right to referendum or to even have that statute CRS 30-11-103.5, if it wasn’t the intention of the General Assembly to safeguard these rights with these statutes.

So even though the County’s legal team is threatening to press their legal fees and wasting everyone’s time and money, this exercise shall continue! Now we all must await the judge to give an answer or the unlikely outcome of the county choosing to put the LUC update to a vote.

If you made it to the end thank you for taking the time to familiarize yourself with such a complex topic.

The people of Delta County we need your help in spreading the word or if you feel inclined to help or inspired to donate to A4LL’ s continued cause. We can use all the help anyone can offer. This battle is not just in the official courts but also in the court of public opinion.