How can that be? Shouldn’t MAGA Constitutional Scholars object?
Why are citizens of Park County denied their Constitutional rights?
Why can’t Park County citizens exercise the initiative and referendum rights guaranteed in the Colorado Constitution to citizens of towns, cities, and municipalities? Indeed, why can’t Park County citizens use the initiative process to, for example, enact a resolution or ordinance to create a health services special district in the Platte Canyon area of the county? Or some other community-based endeavor the MAGA-centric board of county commissioners finds not consistent with their ideological biases?
Why are citizens (the people) of Park County excluded from the lofty intent of Article II of the Colorado Constitution (subtitled Bill of Rights) that reads:
In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:
Section 1. Vestment of political power. All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
Section 2. People may alter or abolish form of government – proviso. The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States.
That little qualification at the end, “such change be not repugnant to the Constitution of the United States,” limits everyone’s choices. Right?
But what about us? Are citizens of Park County included in that word, people, as it is so gloriously referred to in the state constitution? If we are, why does the Colorado Constitution look at us differently than citizens who live in local government enclaves different from ours?
Aha! Here you go. Article V, Section 1(9), however says this:
(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.
Do you see it? Only those citizens who live in cities, towns, and municipalities are empowered to enjoy the whole litany of the rights reserved for the people. Folks who live in “statutory counties” are not entitled to the entire gamut of rights enjoyed by those who live in one of the other identified assemblages of human beings other than statutory counties.
There are three types of county-level governments in Colorado:
- Statutory counties
- Home Rule counties, towns, cities
- Consolidated cities and counties (can be Home Rule)
Only two counties in Colorado have adopted Home Rule—Weld and Pitkin—and their charters include the people’s right of initiative and referendum. C.R.S. Title 30 requires counties to include initiative, referendum, and recall in their Home Rule charters.
Park County is a statutory county. What is a statutory county?
Chief Justice John Dillon of the Iowa Supreme Court in 1868 articulated the essence of a statutory county—his decision in Clinton v. Cedar Rapids and the Missouri River Rail Road provided this:
“Municipal corporations owe their origin to and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy.” Local governments are ” …the mere tenants at will of their legislature” “
Yes, statutory counties are municipal corporations. And if you think you’ve heard that name, Dillon, before, you’re right. Dillion’s Rule, above, is the long-standing shorthand reference that explains and identifies counties as arms of the state restricted to the powers explicitly vested in them by the state’s legislature. Statutory counties that dare to act beyond the powers given to them by the legislature are acting ultra vires, i.e., beyond the powers.
Interestingly and illustrative of Dillion’s Rule, Colorado statutory counties could not regulate short-term rentals prior to 2023 because C.R.S. Title 30, which creates county governments in Colorado, did not expressly provide that authority. It wasn’t until June 2023, under HB23-1287, that the legislature modified C.R.S. Title 30 to allow for the same.
Iowa Supreme Court Justice John Dillion did not originate the principles behind Dillion’s Rule in 1868. There is some evidence that it originated in English common law or even before. Some argue that the principle expressed by Dillion’s Rule was articulated succinctly by the 10th Amendment to the U.S. Constitution, which says “…powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The U.S. Constitution doesn’t mention local governments at all. Quoting Justice Kennedy from 1995, “…the Framers split the atom of sovereignty.” There’s the nation, and there are states, no more and no less. It’s called Federalism. If the national government doesn’t possess the power via the Constitution, then the power resides in the states. The rub, of course, with the 10th Amendment is that last part: “…or to the people.”
However, it does not apply to the people who reside in statutory counties like Park County, where Dillion’s rule abrogates the rights of the people. Relying on the 10th Amendment, the sovereign state of Colorado, like every other state in the nation, possesses the power to create and regulate local governments (entities not mentioned in the U.S. Constitution) and, in doing so, necessarily (obviously) trumps the majestically referred to rights of the people in Article II of the state Constitution. Right?
I do wonder why our local MAGA Constitutional scholars have not dived into this issue with hair-on-fire determination to right the wrong.
There is, though, the sneaking suspicion that the Chair of the Board of County Commissioners, Dave Wissel (also Chair of the Park County MAGA Central Committee), dreams of achieving Home Rule status for Park County. If Park County were a Home Rule county like Weld or Pitkin, there would be no limit to what he could achieve in his quest to be King of Everything.
Well, there would be limits. Would Wissel and his sidekicks Amy and Jason gleefully test those limits?
Home Rule governance for cities and towns was added to the Colorado Constitution in 1902 and expanded to counties by a vote of the people in 1970. In a nutshell, Home Rule allows local governments more control over local issues. It is an exercise in democracy, allowing the people to form a charter within which the structure of their local government is set forth, including elected positions. However, for issues that are statewide or a mix of statewide and local concerns, state law will generally supersede home rule charter provisions. Home Rule counties must continue to deliver all services required by state law.
In 1902, Home Rule was added to the Colorado Constitution, and in 1910, the citizen initiative and referendum for cities, towns, and municipalities was added. There’s no mystery why those amendments were added when they were.
The Progressive Era (1890s to 1920s) in America saw social and political reforms primarily in reaction to the massive industrialization of America and the consequent corruption of politics and wealth inequality engendered by the so-called Gilded Age of the late nineteenth century.
The Progressive Era in Colorado resulted in our Constitution embracing the eight-hour workday for miners, child labor laws, Prohibition, and minimum wage. Nationally, with Teddy Roosevelt at the helm, Colorado was included in Progressive efforts to create national forests and parks, water laws, and massive irrigation systems.
So, my MAGA friends, the next time you denigrate Progressives as vermin, give a wee thought to the history of Progressivism not only in Colorado but nationally as well. (I hope we can assume MAGA supports child labor laws and the eight-hour day.)
What if my suspicion about Dave Wissel’s dreams of Home Rule for Park County are true? Colo. Rev. Stat. § 30-11-501 provides the process for a county to become a Home Rule county.
C.R.S. 30-11-502 et. seq.
If you’ve perused the statute, you’ll note that a resolution by the board of county commissioners or a petition from not less than 5% of registered electors will begin the process of putting the charter question to a vote of the people. You can’t be a Home Rule County without first adopting a charter. The ballot question would ask if you want to form a charter commission and who you want to serve on the commission. From the cast of eligible electors who put their names up for election to the commission, eleven would be chosen (those who receive the highest votes), three from each of the commissioner districts and two at large. (The statute appears to allow the Board of County Commissioners to create districts specifically for the charter commission vote.)
One does have to consider the makeup of the charter commission. If it’s overwhelmingly or even just a simple majority of MAGAites, what would that bode for the kind of charter Park County would be stuck with? Would MAGAites create the elected or appointed position of King of Everything at Wissel’s behest?
There is the realization that, like the Constitution, the only way to change a county’s charter is by a vote of the people.
The statute requires the Charter Commission to “…conduct a comprehensive study of the operation of county government and of the ways in which the conduct of county government might be improved or reorganized. Within two hundred forty days after its initial meeting, the charter commission shall present to the board of county commissioners a proposed charter…”
To enable the Commission to conduct its business responsibly, the statute provides that it “…may employ a staff, may consult and retain experts, and may purchase, lease, or otherwise provide for such supplies, materials, equipment, and facilities as it deems necessary or desirable. The board of county commissioners may accept funds, grants, gifts, and services for the charter commission from the state of Colorado, the government of the United States or any of its agencies, or other sources, public or private.” The statute also provides that “the board of county commissioners is authorized to create a special county charter fund and establish a mill levy therefor when the charter commission has submitted a preliminary budget approved by the board of county commissioners.”
The anticipated time for creating a county charter is “within two hundred forty days.” In that time, the charter commission members can be compensated not for their time but for their expenses. During that roughly two-thirds of a year, whatever equipment, supplies, and professional services are needed to complete that task will be paid directly from the county’s general fund or through the mill levy-funded account county commissioners establish for the charter creation effort.
Will the charter creation effort cost money? Of course, it will. Will MAGA-centric Park County commissioners compromise their oft-quoted mantra, NO NEW TAXES, and approve a mill levy-supported special home rule charter fund? We all know the general fund would not accommodate the expenses related to a charter commission.
I don’t know. I suppose Wissel and crew would ponder what’s in it for them. Would the end justify the means?
A local government’s constitution is its charter. I think that’s the best way to view it. During my working career, I dealt with the freedoms and constraints of the City and County of Denver’s Charter, which was adopted by a vote of the people in 1904. To the consternation of the assistant city attorney assigned to my division, I wrote several amendments to the Denver Charter, all of which were eventually approved by a vote of the people.
I like the cleanliness of a charter. In most cases, charter language has little or no ambiguity because it’s been reviewed extensively, even by the people, before it becomes law. A charter is eminently specific to the local government it was written for. Yes, the state still dictates some aspects of what a county home rule charter must contain, but by and large, they are more reflective of the needs of the local community.
The essential rub, of course, is who defines the local community’s needs. MAGA-centric needs, i.e., those of our current three commissioners and county manager, differ in many areas from mine—maybe yours, too. With the current configuration of MAGA Mamas and Papas running both the county government and the Park County MAGA Central Committee (formerly known as Republicans), creating a home rule charter for Park County would be contentious. The elected charter commission would necessarily have to toe Wissel’s, Mitchell’s, and Gemmer’s line when dotting those Is and crossing those Ts or else.
Or, to be sure, if only MAGAites were elected to the charter commission, there would be no contention; God would be in his heaven, and all would be right with the world.
I don’t expect any substantive movement on home rule for Park County any time soon. When there is, and if you’ve gotten this far in this post, you’ve been slightly schooled on the topic and will understand the basics.
Here are some further resources:
Home Rule in Colorado, Home Rule Pros and Cons, Weld County Home Rule Charter, Pitkin County Home Rule Charter
