Save Palisade Fruitlands v. Todd

• Citation: 279 F.3d 1204
• Decision Date: 07 February 2002
• Docket Number: No. 00-1423.,00-1423.
• Parties: SAVE PALISADE FRUITLANDS, a Colorado unincorporated nonprofit association; Harry C. Talbott; Galen R. Wallace; Allen M. (Mac) Williams, Plaintiffs-Appellants, v. Monika TODD, in her official capacity as County Clerk of Mesa County, Colorado; Mesa County Board, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

279 F.3d 1204

SAVE PALISADE FRUITLANDS, a Colorado unincorporated nonprofit association; Harry C. Talbott; Galen R. Wallace; Allen M. (Mac) Williams, Plaintiffs-Appellants, v. Monika TODD, in her official capacity as County Clerk of Mesa County, Colorado; Mesa County Board, Defendants-Appellees.

No. 00-1423.

United States Court of Appeals, Tenth Circuit.

February 7, 2002.

COPYRIGHT MATERIAL OMITTED

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,^* and BRISCOE, Circuit Judges.

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 on other grounds, 11 P.3d 432 (Colo.2000) (en banc).¹

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.² 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.

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-government. 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. Id. 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 v. Andrews, 687 P.2d 457, 458 (Colo.Ct.App. 1984) (noting that article XIV, section 16 frees home rule counties from the provisions of sections 6, 8, 9, 10, 12, and 15 of article XIV 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.³ 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.

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.

II. 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. Work 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...