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Litigation of Municipal and Local Government Referendum Rights in Colorado
Referendum and initiative rights in Colorado generally refer to the ability to put legislative legal decisions and proposed laws to a vote of the people before they officially become effective. In particular, referendum rights are implicated where a legislative decision or proposed law has already been made or otherwise approved and citizens wish to vote on that decision or law before it is implemented. In effect, referendum rights involve “referring” an already approved legislative decision or law to a vote of the people for final approval.
In contrast, initiative rights are implicated where citizens themselves want a new law passed and, accordingly, draft a proposed law and place it on the ballot for direct approval by the people. That is, initiative rights are implicated where the people are “initiating” a new law as opposed to simply referring an already passed one to a vote, as occurs with referendum.
While referendum and initiative rights are fundamentally similar, in Colorado there are procedural differences as to how each of those rights can be exercised, including differences both at the state and local government levels. In particular, referenda and initiatives exercised at the state level are governed by state procedures while referenda and initiatives at the local government level; such as within cities, towns, and municipalities; are governed by procedures at the local level.
Importantly, even procedures between local governments can vary meaning that different cities, towns, and municipalities within Colorado can have different referenda and initiative processes. Indeed, many Colorado cities, towns, and municipalities actually have adopted significantly different referenda and initiative procedures. Accordingly, where referendum and initiative rights are being exercised at the local level, involved citizens would be wise to research and confirm they are following the appropriate procedures.
Despite the possibility of referenda and initiative procedures varying significantly in Colorado depending on the locale and level of government, there are still some general commonalities that exist both at the state and local government levels. Specifically, both state and local government procedures typically require that:
– the form of the referendum or initiative petition has to be approved by a government official before circulation to ensure the form complies with applicable formatting laws;
– the approved referendum or initiative petition needs to be circulated and returned with a sufficient number of signatures of registered voters before a particular deadline;
– and, after the referendum or initiative petition is returned, the signatures on the petition will have to be reviewed and verified for sufficiency before the petition is put on the ballot.
Additional procedures that may be available depending on whether the applicable government body has adopted them include protest procedures, whereby interested citizens can challenge findings regarding the petition; and cure provisions, whereby additional signatures may be added to the petition if it is declared to have an insufficient number after submission.
The right to referendum and initiative have comparable and overlapping principles; however, because there are differences in procedures for exercising those rights, this article focuses specifically on the right to referendum as well as applicable laws and legal decisions.
Source of Authority for Referendum Rights in Colorado
The right to referendum in Colorado is considered a fundamental democratic right and is specifically provided for and protected by the Colorado Constitution. In particular, Article V of the Colorado Constitution, which enumerates the legislative powers of the state and reserves the ability to propose and vote on state laws to the people, provides that:
The second power hereby reserved [by the people] is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions, against any act or item, section, or part of any act of the general assembly, either by a petition signed 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 the secretary of state at the previous general election or by the general assembly.
See Colo. Const. art. V, § 1(3). Notably, while the above section only specifically reserves the right to referendum at the state level, meaning for state legislative decisions; in another section the Colorado Constitution further reserves the right to referendum at the local government level as well, specifically including, cities, towns, and municipalities:
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 percent to propose any measure by the initiative in any city, town, or municipality.
See Colo. Const. art. V, § 1(9). Importantly, the above section reserving the right to referendum at the local government level allows those local governments to adopt and provide their own procedures for exercising that right. Accordingly, local governments are not bound by, nor are they subject to the referendum procedures that apply at the state level.
Additionally, because the right to referendum is specifically provided for in Colorado’s Constitution, Colorado courts view it as integral to Colorado’s democratic process and as a direct check on the exercise of legislative power by elected officials. That is, the right to referendum allows state and local government legislatures to be held directly accountable by the people. If a law is passed that the people are opposed to, that law can be referred to a vote thereby ensuring legislative authority truly does come from the will of the people.
Along these same lines, because referendum rights are seen as such an integral part to Colorado’s democracy, Colorado courts routinely protect those rights. Indeed, Colorado courts have specifically mandated that laws governing the referendum process are to be given a liberal construction so as to avoid unfairly impeding on referendum rights. Correspondingly, laws that are meant to restrict referendum rights are given a narrow construction in furtherance of those same principles. See Margolis v. District Court, 638 P.2d 297 (Colo. 1981); Baker v. Bosworth, 222 P.2d 416 (Colo. 1950).
Colorado Referendum Rights and Procedures at the State Level
At the state level, referendum rights most directly apply to recently adopted state statutes that concerned citizens wish to vote on. Exercising the right to referendum at the state level is generally governed by the requirements of the Colorado Constitution article V, § 1(3) and Colorado Revised Statutes (“C.R.S.”) §§ 1-40-101, et seq.
Specifically, Colorado Constitution article V, § 1(3) provides that petitions seeking to refer a state law to a vote of the people must be filed with the Colorado Secretary of State within 90 days of the end of the legislative session that passed the law.
Further, the Colorado Constitution requires that referendum petitions at the state level must contain enough signatures of registered voters to equal at least 5 percent of the total number of votes cast for the office of Colorado’s secretary of state at the previous general election. As of September 2018, and as indicated on the Colorado Secretary of State’s website, that required number was 98,492. See Colo. Const. art. V, § 1(9).
While the Colorado Constitution governs general timing and signature requirements for referenda, C.R.S. §§ 1-40-101, et seq. provides more specific procedures for actually exercising referendum rights at the state level.
In particular, after submission of a referendum petition, those statutes require a title board to convene and set a title for the referendum ballot language. That title must fairly express the true intent and meaning of the proposed statute sought to be referred. Further, once the title is set, timelines begin running for collection of signatures and submission of the referendum petition to the Colorado Secretary of State. See C.R.S § 1-40-106(3)(d); C.R.S. § 1-40-108.
Importantly, Colorado state statute also contain provisions governing the format of the petitions and requirements for obtaining signatures. In particular, referenda petitions must contain specific language warning signers of the legal effects and requirements for signing the petition. Further, only registered electors are allowed to sign the petition and must sign their name, print their name, include their address, and the date of signing. See C.R.S. §§ 1-40-110 to -112.
After the petition has been circulated, signatures obtained, and submitted, the Colorado Secretary of State will then begin the process of validating the signatures to confirm that the petition contains the minimum number of signatures required by the Colorado Constitution. Importantly, the Colorado Secretary of State must make her initial sufficiency or insufficiency finding within 30 days after the petition has been filed or the petition will be declared sufficient by default. See C.R.S. 1-40-117 to -118.
If the Colorado Secretary of State determines the petition does not have a sufficient number of signatures based upon invalidation of signatures, the petitioners may attempt to cure the deficiency by submitting additional signatures within 15 days of the insufficiency finding. Colorado’s state referendum procedures also provide the ability to review the Colorado Secretary of State’s findings by filing a protest in district court. See C.R.S. § 1-40-117 to -118.
If the Colorado Secretary of State reviews the signatures and find the petition to be sufficient; either at the initial finding, through supplementation, or after correction of her initial findings through a protest proceeding; she must then certify to each county the ballot titles and numbers of each referred measure to be voted upon at the next election. See C.R.S. § 1-40-122.
Importantly, and as specified in the Colorado Constitution, the right to referendum at the state level does not apply to laws “necessary for the immediate preservations of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions.”
Thus, to the extent the state legislature wants to pass a law and not subject the law potentially being referred to a public vote, the legislature may simply indicate the statue is necessary for the public peace, health, or safety of the public. See Burks v. City of Lafayette, 349 P.2d 692 (Colo. 1960).
With the ability of the state legislature to simply out opt of subjecting a law to potential referendum by including a public health and safety clause in the law, the right to referendum at the state level has only rarely been exercised in modern times. Indeed, the last time a referendum occurred at the state level was 1932.
Colorado Referendum Rights and Procedures at the Municipal and Local Government Level
In contrast to referendum rights at the state level, referendum rights at the municipal and local government level are much more frequently exercised as, often times, local government referendum rights are more inclusive than at the state level.
In particular, many local governments broadly grant their citizens the right to refer all legislative decisions of their local governing body and, along these same lines, do not incorporate the public health and safety exception that exists at the state level. See Burks v. City of Lafayette, 349 P.2d 692 (Colo. 1960).
Furthermore, local governments tend to make far more routine decisions that qualify as referrable subject matter than what occurs at the state level. Examples of these types of decisions include adoption of resolutions by a city council, adoption of ordinances by a city council, zoning decisions, and approval of vested property rights by a local governing body. Notably, most local governments make these types of decisions on a weekly basis generating significant amount of potentially referrable subject matter. See C.R.S. § 24-68-103.
One particular nuance with the right to referendum at the local government level is that, while the Colorado Constitution provides referendum rights are generally only applicable to legislative decisions, it can sometimes be difficult to ascertain whether a particular local government decision is legislative. This is because many local governments vest all of their powers into one type of governing body, such as a city council. Accordingly, even though a decision comes from a particular body, it may not necessarily be legislative in nature.
Factors courts turn to in determining whether or not a particular decision is legislative in nature include whether the decision is of a permanent and broadly applicable character and whether the decision involves weighing of competing policy consideration rather than specific facts of individual cases. See Vagneur v. City of Aspen, 295 P.3d 493 (Colo. 2013); City of Colo. Springs v. Bull, 143 P.3d 1127 (Colo. App. 2006).
With respect to specific referendum procedures at the local government level, while Colorado state statutes and Colorado Constitution govern the exercise of referendum rights at the state level, the Colorado Constitution effectively leaves local governments free to adopt their own requirements and processes for exercising local referendum rights. See Colo. Const. art. V, § 1(9); Leach Arnold Homes, Inc. v. City of Boulder, 507 P.2d 476 (Colo. App. 1973).
In particular, the only limitation found in the Colorado Constitution at the local level is that the maximum number of signatures cities, towns, and municipalities can require for referenda petitions is 10 percent of registered voters in the applicable area. That is, local governments cannot require that referenda petitions be signed by more than 10 percent of their registered voters in order for the referred measure to be placed on the ballot. See Colo. Const. art. V, § 1(9).
While the Colorado Constitution generally leaves local governments the ability to prescribe and adopt their own referendum procedures, there are default state statutes that govern if a local government does not adopt its own procedures. Specifically, C.R.S. §§ 31-11-101, et seq. are those default referendum procedures.
At a high level, the state statute default procedure for referenda at the local government level is analogous to the referendum process at the state level discussed above. More specifically, both the state level and default local government procedures require referendum petitions to be submitted by a certain deadline after the legislative decision, the petition must contain sufficient signatures of locally registered voters, and interested citizens may challenge petition sufficiency or insufficiency findings through a protest process.
In particular, under the default procedures, a referendum petition must be filed with the local government clerk within 30 days after final publication of the legislative decision sought to be referred. Further, the petition must be signed within that 30 day period by at least five percent of the registered voters in the local municipality. See C.R.S. § 31-11-105
Additionally, the petition form must conform to state form requirements, contain specific warnings indicating that it is against the law for somebody to fraudulently sign a petition, and be approved by the local clerk before being circulated for signatures. See C.R.S. § 31-11-106.
Once the signed petition is officially submitted to the clerk, the clerk must timely inspect the signatures and render a statement of sufficiency or insufficiency within 30 days of the petition’s filing. During this same time period, any locally registered voter may file a protest with the clerk within 40 days after the petition’s filing contesting its validity. If a protest is filed, the clerk will hold a hearing on the matter and render a decision on the protest. See C.R.S. § 31-11-109 to -110.
If a petition is certified as sufficient; that is, it is timely, contains the requisite number of signatures, and makes it past any protest; then the local legislative body must promptly reconsider the ordinance and, if the ordinance is not rescinded, then it must be put to a vote of the people not less than 60 days and not more than 150 days from the date the petition was deemed sufficient. See C.R.S. § 31-11-105.
While these statutes generally represent the default procedure, many cities and municipalities actually do provide for alternative procedures. However, even those alternative procedures tend to generally track or are similar to the statutory process. Regardless, citizens should make sure they research their local laws to determine whether local procedures or Colorado’s default referendum procedures apply.
Miscellaneous Referendum Considerations and Procedures
While the above discusses referendum right at the state and local government levels, referendum rights exist at other levels as well. Specifically, C.R.S. § 30-11-103.5 governs referendum procedures at the county level and C.R.S. § 22-30-104(4) governs referendum procedures for school districts.
At the county level, similar to at the local government level, the procedures enumerated in C.R.S. § 30-11-103.5 govern as the default procedure if no other procedures are adopted or otherwise provided for. Interestingly, if no other procedures are provided for, C.R.S. § 30-11-103.5 references the default procedures discussed above stating that, referenda at the county level is to “follow as nearly as practicable the procedures for municipal [referenda].”
For school district referenda, C.R.S. § 22-30-104 mandates similar requirements where, if no other procedures are prescribed by statue or the state constitution, the default procedures for municipal referenda discussed above shall govern.
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.