HomeMy WebLinkAbout760432.tiff _n
MELVIN DINNER
ATTORNEY AND COUNSELOR AT LAW
030 GREELEY NATIONAL PLAZA
GREELEY, COLORADO 8O631
ASSOCIATE TELEPHONE 1303) 352-2001
THOMAS E. HELLERICH October 19, 1976
Board of County Commissioners of Weld County
Weld County Centennial Building
Greeley, Colorado 80631
Attention: Mr. Glenn Billings,
Chairman of the Board
Re: William S. "Bill" Garnsey et. al.
vs. The Board of County Commissioners
of the County of Weld, et. al.
Civil Action No: 28085
District Court, Weld County,
Colorado
Dear Mr. Billings:
I am pleased to report to the Board of County Commissioners that on
Friday, October 15, 1976 the Honorable Robert A. Behrman, Weld County
District Court Judge, entered his Final Judgment in connection with the
above entitled Home Rule Charter proceedings.
I am enclosing herewith for your benefit a copy of the Findings Of Fact,
Conclusions Of Law and Final Judgment prepared by the attorneys representing
the Defendants in the above entitled proceeding submitted to Judge
Behrman for his approval and signed by him on October 15, 1976. In
view of the fact that the Findings Of Fact, Conclusions of Law, and
Final Judgment is 16 pages in length, I will not attempt in this letter
to dwell at great length as to the many items covered, but to simply
provide a brief summary of the court's ruling as it relates to the Home
Rule Chatter case.
Basically Judge Behrman has reaffirmed and readopted his written Memoranda
of Decision heretofore entered on this case on November 25, 1975, ..
December 18, 1975 and July 20, 1976. These prior decisions determine
that the Plaintiffs, as taxpayers and citizens of Weld County had
standing in which to secure declaratory relief before the Weld County
District Court; that the special election of December 9, 1975 was a
valid election and that the successful candidates elected were duly
entitled to hold the offices to which they were elected; that the Home
Rule Charter for Weld County established a valid and lawful frame of
government for Weld County; that the County government is possessed of
all powers conferred upon home rule counties by the State Constitution,
Statutes of the State of Colorado, including the various statutes
adopted by the 1976 session of the State Legislature; that the Home Rule
Charter for Weld County was lawfully adopted and is in full force and
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effect as the frame of home rule government for Weld County, Colorado;
that Weld County as a home rule county is not restricted to the
constitutional and statutory authority which existed at the time the
Home Rule Charter was adopted, but that the statutory provisions enacted
by the State Legislature in 1976, specifically, House Bill 1139 and
Senate Bill 58 are also applicable and in effect; that Weld County is
free to exercise not only the powers that were granted to home rule
counties by the constitution and the laws of the State of Colorado as then
in effect, but also those which would thereafter be granted to home rule
counties; that the 1976 session of the State Legislature enacted its
legislation with relation to home rule counties with Weld County in mind
and with the intention to resolve some of the questions that had arisen
in connection with the Weld County charter.
In its Conclusions of Law the court discussed the effect of the passage
of Senate Bill 58 and House Bill 1139 and determined that neither of
these pieces of legislation adopted in 1976, gave retrospective effect
to this legislation contrary to the prohibition contained in the State
Constitution.
Specifically, the court also determined:
(1) . That the County Council is a duly created body and is
authorized to exercise the powers conferred upon it by the Home
Rule Charter of Weld County, Colorado to the extent that those powers
are granted to home rule counties by the Constitution and the laws
of the State of Colorado.
(2) . That the Board of County Commissioners may lawfully enact
ordinances.
(3) . That the court cannot at this time make a declaration
concerning whether the County Council may exercise the powers contained
in Section 14-7 of the Weld County Home Rule Charter because of
the provisions of House Bill 1139 enacted by the 1976 State
Legislature.
(4) . "That no basis now exists for present declaratory relief as
to the other contentions of the Plaintiffs in relation thereto and that
the determination of the validity of the other challenged sections of
the Weld County Home Rule Charter must await implementation of those
sections."
(5) . That the Plaintiffs failed to comply with Colorado Rules of
Civil Procedure, Section 106 (a) (3) .
The Court further determined that the request for a Writ in the nature
of Quo Warranto requested by the Plaintiffs should be and was
denied.
In view of the fact that the hearing in the above entitled proceeding on
June 28, 1976 was based upon Motions for Summary Judgment, it would
appear under Rule 59 (h) of the Rules of Civil Procedure, that should
the Plaintiffs desire to appeal there is no necessity for filing a
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Motion for New Trial or a Motion to Alter or Amend the Judgment heretofore
entered, and that the Plaintiffs would have a period of thirty days
within which to file their Notice of Appeal should they desire to do so.
I am quite hopeful that the entry of the Findings Of Fact, Conclusions
of Law and Final Judgment will now conclude this matter.
Ver truly yo s,
MELVIN DINNER
MD/ds
Enclosures
pie
4> 3.>77---
IN THE DISTRICT COURT IN AND FOR THE C
COUNTY OF WELD AND STATE OF COLORADO
Civil Action No. 28085
WILLIAM S. "BILL" GARNSEY and )
BARBARA TATMAN, individually and )
WILLIAM S. "BILL" GARNSEY and )
BARBARA TATMAN, upon the relation )
of the District Attorney for the )
Nineteenth Judicial District, )
)
Plaintiffs, )
)
vs. )
)
THE BOARD OF COUNTY COMMISSIONERS )
OF THE COUNTY OF WELD, S. LEE )
SHEHEE, Clerk and Recorder of )
Weld County, Colorado; NORMAN )
CARLSON and JUNE STEINMARK, )
individually; THE COUNTY COUNCIL ) FINDINGS OF FACT, CONCLUSIONS
OF WELD COUNTY, COLORADO; and ) OF LAW AND FINAL JUDGMENT
JOHN T. MARTIN, NANCY CLARK, )
FLOYD OLIVER, BOB E. WHITE and )
LACY WILKINSON, individually, )
)
Defendants, )
)
JOHN HALEY, JOE TENNESSEN, CLARK )
EWALD, LARRY SCOTT, W. R. FARR, )
WM. H. WEBSTER, GORDON JOHNSON, )
LARRY MENEFEE, JOHN CHUCK CARLSON, )
RALPH E. WALDO, JR. , EDWARD L. )
DUNBAR, NORMAN BROWN, JOHN L. "TIM" )
WEIGAND, EDWIN LESH, GLEN R. ANDER- )
SON, J. L. "BUD"JOHNSON, WILLIAM H. )
SOUTHARD, GEORGE H. BROOKS, W. E. )
ROSENOFF, HAROLD FARENBRUCH, CHARLEY )
BAUMGARTNER, PHILIP G. BOWLES, DONALD )
E. ALTERGOTT, WALTER L. BAIN and )
RUBEN SCHISSLER, and EMMETT SAVARD, )
as Chairman of the Weld County )
Republican Executive Committee, )
)
Intervenors. )
THIS MATTER Came on for hearing on the motions for summary judgment
heretofore filed by both the Plaintiffs and Defendants in the above
entitled proceeding on June 28, 1976. The Plaintiffs appeared in person
and by their counsel of record, Leonard R. Liss, 909 Writers Tower, 1660
South Albion Street, Denver, Colorado 80222; the Defendants, The Board
of County Commissioners of the County of Weld, and Norman Carlson and
June Steinmark, individually, appeared by their counsel of record, Melvin
L,/2 9a/
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Dinner, 630 Greeley National Plaza, Greeley, Colorado 80631; the De-
fendants S. Lee Shehee, Clerk and Recorder of Weld County, Colorado, the
County Council of Weld County, Colorado, and John T. Martin, Nancy
Clark, Floyd Oliver, Bob E. White and Lacy Wilkinson, individually,
appeared by their counsel of record, Robert N. Miller, District Attorney,
915-10th Street, Greeley, Colorado 80631.
The proceedings brought by the Plaintiffs initially involved a request
for declaratory judgment that the Home Rule Charter of Weld County,
Colorado, or provisions thereof, and the special election called for
December 9, 1975 be declared to be void, unconstitutional and ineffective
and without force of law; that the Defendants, The Board of County
Commissioners of the County of Weld and S. Lee Shehee, Clerk and Recorder
of Weld County, Colorado, be restrained and enjoined from conducting the
special election scheduled for December 9, 1975, and that said Defendants,
The Board of County Commissioners of .the County of Weld be enjoined and
restrained from appropriating or expending any funds for said special
election or of providing for a home rule county in Weld County, Colorado,
for costs and attorney's fees and for such other and further relief as
the Court may deem proper under the circumstances.
In addition to filing the Complaint on or about November 12, 1975,
the Plaintiffs filed a Petition for Temporary Restraining Order or
Preliminary Injunction requesting that the special election scheduled to
be held on December 9, 1975 be enjoined or restrained, all as more
particularly set forth and alleged in the Plaintiffs' Complaint.
Thereafter, a Motion to Intervene was filed by William L. West as
attorney on behalf of John Haley, Joe Tennessen, Clark Ewald, Larry
Scott, W. R. Farr, Wm. H. Webster, Gordon Johnson, Larry Menefee, John
Chuck Carlson, Ralph E. Waldo, Jr. , Edward L. Dunbar, Norman Brown, John
L. "Tim" Weigard, Edwin Lesh, Glen R. Anderson, J. L. "Bud" Johnson,
William H. Southard, George H. Brooks, W. E. Rosenoff, Harold Farenbruch,
Charley Baumgartner, Philip G. Bowles, Donald E. Altergott, Walter L.
Bain and Ruben Schissler. A Motion to Intervene was also filed by
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Charles A. Karowsky of the firm of Karowsky, Witwer and Oldenburg, on
behalf of Emmett Savard, individually, and in his capacity as Chairman
of the Weld County Republican Executive Committee. Mr. Karowsky, as
attorney on behalf of Emmett Savard, individually, and as Chairman of
the Weld County Republican Executive Committee, filed a Motion for More
Definite Statement and a Motion to Dismiss.
Thereafter, Motions to Dismiss the above entitled proceedings were
filed by the Defendants, by and through their attorneys of record.
Extensive briefs were filed by the Plaintiffs and the Defendants
supporting their respective positions and an evidentary hearing was held
on November 21, 1975 regarding the Motions for Intervention, the Motions
to Dismiss and the Request for Preliminary Injunction and Issuance of
Restraining Order. The Motions to Intervene were granted.
Thereafter, the Court, following the hearing, took the matter under
advisement and by virtue of written Memorandum of Decision and Order
dated November 25, 1975 by this Honorable. Court, copy of which is attached
hereto and incorporated by reference herein, the Plaintiffs' Petition
for Temporary Restraining Order and Issuance of Preliminary Injunction
was denied. By virtue of written Memorandum of Decision and Order dated
December 18, 1975, a copy of which is also attached hereto and incorporated
by reference herein, the Court ordered that the Motions to Dismiss filed
by Defendants and by Intervener, Emmett Savard, be denied.
The special election scheduled for December 9, 1975 was, in fact,
held as scheduled and Norman Carlson and June Steinmark were elected as
additional members of the Board of County Commissioners of the County of
Weld to commence their terms of office on January 1, 1976, and John T.
Martin, Nancy Clark, Floyd Oliver, Bob E. White and Lacy Wilkinson were
elected as the members of the County Council of Weld County, Colorado.
On December 29, 1975 the Court granted the Plaintiffs 20 days from said
date in which to file an Amended Complaint and an extension was thereafter
granted until February 9, 1976 for the Plaintiffs in which to file an
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Amended Complaint.
Thereafter, the Plaintiffs filed an Amended Complaint, naming as
additional parties thereto, the Defendants formerly named, that is, The
Board of County Commissioners of the County of Weld and S. Lee Shehee,
Clerk and Recorder of Weld County, Colorado, and included Norman Carlson
and June Steinmark, individually (the newly elected members of the Board
of County Commissioners of the County of Weld) and the County Council of
Weld County, Colorado and John T. Martin, Nancy Clark, Floyd Oliver, Bob
E. White and Lacy Wilkinson, individually (the members of the County Council
elected by the special election of December 9, 1975) all of whom were to
commence their terms of office on January 1, 1976.
On or about February 9, 1976 the Colorado Senate passed Senate Bill
58, a bill dealing with powers of home rule counties.
The Defendants then filed a Motion for Continuance requesting a
continuance for filing any responsive, pleadings or motions to the Plaintiffs'
Amended Complaint until such time as the Fiftieth General Assembly of
the State of Colorado takes final action regarding said legislation and
any other legislation dealing with matters pertaining to home rule
counties. The Defendants further filed a Motion for Extension of Time
within which to file any responsive pleadings or motions to the Amended
Complaint until such time as the Court determined the matters pertaining
to the motion for continuance. On or about February 20, 1976 this
Honorable Court extended the Defendants' time to plead until such time
as the motion for continuance is determined.
Thereafter, William L. West on behalf of the Intervenors whom he
represented, John L. Haley, et al, requested authorization to withdraw
from the action, and an Order was entered authorizing the withdrawal
thereof on April 13, 1976. Mr. Karowsky, as attorney on behalf of
Intervenor, Emmett Savard, orally advised the Court of his request to
withdraw as an Intervenor thereof in view of the action taken by the
Court by the Memorandum of Decision and Order rendered on November 25,
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1975 and December 18, 1975, respectively.
On or about April 13, 1976, Melvin Dinner and Robert N. Miller as
the attorneys of record on behalf of all of the named Defendants, filed
a Motion for Summary Judgment, or in the alternative, a Motion to Dismiss
the proceedings under the Amended Complaint heretofore filed by the
Plaintiffs.
Thereafter, on April 13, 1976, Leonard R. Liss as attorney on
behalf of the Plaintiffs, in open Court similarly moved for summary
judgment on behalf of the Plaintiffs therein; the Court then prescribed
a schedule for submittal of briefs relative to the issues involved in
the above pending proceedings, and in due course of time the parties
thereto submitted briefs regarding the issues pertaining thereto.
On June 28, 1976 following the receipt of extensive briefs by the
parties in connection with the pending matters, the Court heard oral
argument from the parties through their respective counsel of record and
at the conclusion of said oral argument, took the matter under advisement.
Thereafter, on July 20, 1976 the Court rendered a Memorandum of
Decision, a copy of which is attached hereto and incorporated by reference
herein.
FINDINGS OF FACT
1. That on or about November 12, 1975, the Plaintiffs commenced an
action pursuant to the provisions of Rule 57, Colorado Rules of Civil
Procedure and C.R.S. Title 13, Article 51, 1973, praying for a Declaratory
Judgment that the Home Rule Charter of Weld County, Colorado, or provisions
thereof, be declared void, unconstitutional and ineffective and without
force of law. The Plaintiffs further filed a Petition for Temporary
Restraining Order or Preliminary Injunction, requesting that the special
election called and to be conducted by the Defendants, The Board of
County Commissioners of the County of Weld, and F. Lee Shehee as Clerk
and Recorder of Weld County, Colorado, be declared void, unconstitutional
and ineffective, and that said election as scheduled for December 9,
1975 be permanently restrained and enjoined and that the Board of County
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Commissioners of Weld County be restrained from appropriating or expending
any funds for said special election or for providing for home rule
county matters in Weld County, Colorado.
2. That the Plaintiffs are citizens, taxpayers and registered
electors of Weld County, Colorado.
3. That the Defendant, S. Lee Shehee, Jr. is the duly elected
Clerk and Recorder of Weld County, Colorado, and as such, is authorized
to conduct general, primary and special elections and that said Defendant
Shehee is also by State statute, the clerk to the Defendant, The Board
of County Commissioners of the County of Weld.
4. That the Defendant, The Board of County Commissioners of the
County of Weld is a legal entity authorized and empowered to exercise
those powers and duties of the County of Weld as such powers or duties
may be granted or delegated to such County, either expressly or by
implication, including the payment of all expenses of the County, and
including those expenses concerning and relating to the conduct of
elections by the Defendant, Shehee.
5. That pursuant to C.R.S. Title 30, Article 11, 1973, as amended,
a home rule charter commission for Weld County was elected, met, prepared
and formulated a proposed Home Rule Charter for the County of Weld, and
subsequently submitted to the Board such proposed Home Rule Charter.
6. After receipt of such charter the Board called and held an
election by referendum of the registered, qualified electors of Weld
County upon the question of the adoption or rejection of the proposed
charter; that said charter election was held on September 9, 1975 and
said charter was adopted by favorable vote of a majority of those voting
upon such question.
7. Thereafter, by Resolution of the Board of County Commissioners
of the County of Weld adopted September 17, 1975, the Charter Commission
was dissolved and all its property, records, files and proceedings
became the property of the County.
8. That pursuant to request made by the Defendant Shehee and
Mr
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provisions of said charter, the Board, by Resolution adopted October 8,
1975, called a special election to be held on December 9, 1975 for the
purpose of electing five "County Councilmen" to a "County Council" and
to elect two County Commissioners as additional members of the Board of
County Commissioners of the County of Weld, with all of such terms
beginning on January 1, 1976.
9. That standards for the granting of injunctive relief in election
cases have been established by the Colorado Supreme Court, and adopted
by this Court in the Written Memorandum Decision of November 25, 1975,
incorporated herein by reference.
10. That the Plaintiffs have failed to demonstrate that the required
election procedures or the conduct of the election has been contaminated
to the extent that the true will of the voting public may not be reflected
or that ,a statutory requirement has not been substantially complied with
by those responsible for calling, scheduling and conducting the election.
11. That this Honorable Court should not and cannot enjoin the
election formerly scheduled for December 9, 1975.
12. That the Home Rule Charter of Weld County contains the following
provision which is not an uncommon one in documents of this sort:
"Section 16 - 4 -- Invalidity of Part -- Severability.
If a court of competent jurisdiction shall, by final
judgment, hold any part or provision of this Charter
to be invalid or unconstitutional, all other provisions
of this Charter shall be considered to be severable
and shall not be affected thereby and the effect of
such decision shall not extend beyond that required by
the court's ruling."
13. That the Plaintiffs attacked the validity of a number, but not
by any means, all of the provisions of the Charter, and that even if all
of the contentions of the Plaintiffs asserting the invalidity of sections
of the Charter were, in fact, ultimately sustained, which is not the case,
by virtue of the section just quoted the remainder of the charter would
remain in effect, and such remainder would be. sufficient to provide a
frame of county government.
14. That the special election scheduled for December 9, 1975 was,
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in fact, held and Norman Carlson and June Steinmark were elected as
additional members of the Board of County Commissioners of the County of
Weld and were thereafter named as Defendants in the Amended Complaint.
15. That John T. Martin, Nancy Clark, Floyd Oliver, Bob E. White
and Lacy Wilkinson were elected as members of the County Council of Weld
County, Colorado, and thereafter the County Council of Weld County,
Colorado and the above named parties were individually named as Defendants
in said proceedings in the Amended Complaint heretofore filed.
16. That pursuant to the provisions of the Charter, the Board of
County Commissioners of the County of Weld by Resolution adopted October
8, 1975, called and held a special election on December 9, 1975, in
which election five persons as "County Councilmen" were elected to a
County Council being the individual Defendants, John T. Martin, Nancy
Clark, Floyd Oliver, Bob E. White, and Lacy Wilkinson, and two persons
as County Commissioners were elected as additional members of the Board
of County Commissioners of the County of Weld, said persons being the
individual Defendants, Norman Carlson and June Steinmark, with all of
said persons to begin their terms of office on January 1, 1976.
17. That the individual members elected to the County Council and
Norman Carlson and June Steinmark, the two additional persons elected
to the Defendant Board were sworn into office and assumed their positions
respectively, as either members of the County Council or as members of
the Board of County Commissioners of the County of Weld.
18. That the Plaintiffs as taxpayers and citizens of Weld County,
and under the provisions of Rule 57 of the Colorado Rules of Civil Pro-
cedure and Colorado Revised Statutes, Title 13, Article 51, 1973, do
have standing to secure declaratory relief, and that justiciable issues
are presented insofar as those issues relate to the general validity of
the Home Rule Charter for Weld County, the general nature of the powers
possessed by Weld County as a home rule county, necessarily involved in
the day to day operations of Weld County government, and to the validity
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of the special election of December 9, 1975. More particularly, those
Charter sections which Plaintiffs seek to contest, and in which they
now have standing to contest, are:
(a) Section 3-14-authorizing the adoption of ordinances by
Weld County, rather than acting through resolution;
(b) Article XIII - Allowing for the creation of a County
Council; and
(c) Section 13-8 which reposes various powers and duties in
that Council.
19. That the special election of December 9, 1975 was a valid
election and the successful candidates therein may duly hold the offices
to which they were elected.
20. That the Home Rule Charter for Weld County establishes a valid
and lawful frame of government for Weld County and the county government
is possessed of all powers conferred.. upon home rule counties by the
Constitution of the State of Colorado, and by the statutes of the State
of Colorado, including the statutes relating to home rule counties
enacted by the Second Regular Session of the Fiftieth General Assembly
of the State of Colorado.
21. That no objection has been raised to the manner of adoption of
the Home Rule Charter for Weld County and therefore the charter as a
whole was lawfully adopted and is in full force and effect as the frame
of home rule government for this county.
22. That Weld County as a Home Rule County is not restricted to
the constitutional and statutory authority which existed at the time the
charter was adopted, but the statutory provisions enacted by the Second
Regular Session of the Fiftieth General Assembly in 1976 particularly
those contained in House Bill 1139 and Senate Bill 58 having been passed
after the adoption of the Home Rule Charter for Weld County are also
applicable thereto and the electors of Weld County in adopting the
charter are free to exercise not only the powers which were granted to
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home rule counties by the Constitution and laws of the State of Colorado
as then in effect, but also those powers which would thereafter be
granted to home rule counties.
23. That neither House Bill 1139 or Senate Bill 58 takes away or
impairs vested rights acquired under existing laws nor, creates a new
obligation or imposes a new duty or attaches a new disability in respect
to transactions or considerations already past and that said legislation
is not contrary to the prohibition contained in Article II, Section 11
of the Constitution of the State of Colorado.
24. That validating acts such as House Bill 1139 and Senate Bill
58 do not come within the constitutional prohibition against retrospective
legislation and that such legislation relating to home rule counties
passed by the Second Regular Session of the Fiftieth General Assembly
must be given full effect in relation to the existing provisions of the
Home Rule Charter for Weld County. .
25. That the County Council is a duly created body and is authorized
to exercise the powers conferred upon it by the Home Rule Charter for
Weld County, Colorado to the extent that those powers are granted to the
home rule counties by the Constitution and the laws of the State of
Colorado.
26. That whatever doubt may have existed with reference to C.R.S.
1973, §30-11-511 as it existed prior to the enactment of Senate Bill 58,
such doubt was removed by the enactment thereof of Senate Bill 58 by the
Second Regular Session of the Fiftieth General Assembly and that the
amended form of §30-11-511 (Senate Bill 58) is now applicable to Weld
County and validates the position of the County Council to the extent
that the powers granted to it are proper powers exerciseable by a home
rule county.
27. That the Board of County Commissioners may lawfully enact
ordinances.
28. That since no authority' has been submitted to the Court to
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indicate that the Board cannot lawfully do so, and no statute has been
cited requiring that the Board of County Commissioners denominate their
acts as resolutions rather than ordinances, it is determined that the
point is only one of terminology and that the acts of the Board of County
Commissioners may with propriety be termed ordinances as well as resolutions.
29. That the Court cannot make a declaration concerning whether
the County Council may exercise the powers contained in §14-7 of the
Home Rule Charter because of the provisions contained in House Bill 1139
enacted by the Second Regular Session of the Fiftieth General Assembly
which provides that "the limitations of this part 3 shall apply to Home
Rule Counties unless provisions are included in the county home rule
charter which are, as determined by the division of local government,
equal to or more restrictive than the provisions of this part 3."
30. That notwithstanding the fact that Plaintiffs are taxpayers
and citizens of Weld County, who have standing to secure declaratory
relief, and that certain justicable issues are presented, the Plaintiffs
also seek relief concerning a number of additional and very detailed
provisions of the Home Rule Charter of Weld County. In regard to most of
these provisions, the Plaintiffs have presented no evidence showing that
these provisions have been exercised or, if so, in what manner they have
been exercised, and how the Plaintiffs are thus adversely affected. More
specifically, these provisions have been set forth as:
(a) Section 3-4 (1) concerning terms of office for the Weld
County Commissioners, and Section 18-4 relating to elections to fill
newly created Commissioner positions. The allegation being that in
construing both sections together, these has been left an illegal gap
in the number of Commissioners required.
(b) Section 3-8-Setting forth the powers and duties of the
Board of County Commissioners.
(c) Section 3-8 (e) providing that Weld County may adopt an
Administrative Code.
(d) Section 3-8 (j) Authorizing the establishment of licenses
by the County of Weld.
(e) Section 3-9 (3) concerning compensation to the members of
the Board of County Commissioners
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(f) Section 5-2 concerning the qualifications of the County
Attorney.
(g) Section 5-3 setting forth the duties of the Department
of Law.
(h) Section 10-6 prohibiting the Board of County Commissioners
from furnishing the Sheriff a residence.
(i) . Section 14-2 (4) authorizing the adoption of emergency ap-
propriations by the Board of County Commissioners.
(j) Section 14-7 (1) concerning limitations on annual tax levies.
(k) Section 14-7 (2) authorizing the County Council to grant an
increased tax levy under certain conditions.
(1) Section 14-8 providing for the limitation of capital expendi-
tures.
(m) Section 14-9 (5) providing that purchases by Weld County in
excess of $2,00O.00, must be limited to sealed bid.
(n) Section 15-3 setting forth the criteria for exercising the
recall of officers.
(o) Section 15-4 setting forth procedures for initiative and
referendum concerning ordinances and resolutions of Weld County.
(p) Section 16-6 concerning Public Notice and the procedures
thereof.
(q) Section 17-2 setting forth the procedure and method of
construing conflicting amendments to the Weld County Home Rule Charter.
31. That the Plaintiffs are not adversely affected by the mere
presence of numerous provisions contained in the Weld County Home Rule
Charter that they assert are invalid which are unexercised, and that
since it does not appear that these provisions have been implemented the
Plaintiffs lack standing to secure declaratory relief relating to these
unexercised provisions.
32. That judicial determination concerning these unexercised
provisions of the charter must await implementation which affect a
party in interest and, are thus not at the present justiciable issues
and do not now present justiciable issues as to these Plaintiffs.
33. That as to the other contentions of Plaintiffs, no basis now
exists for present declaratory relief in relation thereto, and the
determination of the validity of the other challenged sections of the
charter must await implementation of those sections and if disputes
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arise in connection with those sections, application to the Court must
be made by persons more directly affected by them than are the Plaintiffs.
34. That although the Court recognizes the sincerity and good
faith of Plaintiffs' application and request for declaratory relief and
judicial determination thereof and commends the civic interest and sense
of responsibility which has brought the Plaintiffs to bring the present
proceedings, that despite these considerations these matters of detail
are not now ripe for decision; that at present the Court's determination
must be limited to matters of general application.
35. Plaintiffs brought quo warranto action under Rule 106 (a) (3)
C.R.C.P. The Court finds that Plaintiffs did not allege in their Amended
Complaint, nor did they show by evidence or other allegation that the
District Attorney declined to institute an action under C.R.C.P. 106 (a) (3) .
CONCLUSIONS OF LAW
1. That the Plaintiffs as taxpayers and citizens of Weld County,
have standing in which to secure declaratory relief as to certain of the
issues raised by the Plaintiffs and as to those specific justiciable
issues presented the Plaintiffs herein are thus entitled to declaratory
relief pursuant to Rule 57, Colorado Rules of Civil Procedure, and
C.R.S. Title 13, Article 51, 1973.
2. That the special election of December 9, 1975 was a valid
election and the successful candidates therein may duly hold the offices
to which they were elected.
3. That the Home Rule Charter for Weld County establishes a valid
and lawful frame of government for Weld County and the county government
is possessed of all powers conferred upon home rule counties by the
Constitution of the State of Colorado, and by the statutes of the State
of Colorado, including the statutes relating to home rule counties
enacted by the Second Regular Session of the Fiftieth General Assembly
of the State of Colorado. and by virtue of the laws of the State of
Colorado. That the Home Rule Charter for Weld County as a whole was
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lawfully adopted and is in full force and effect as the frame of home
rule government for Weld County, Colorado.
4. That Weld County as a home rule county, is not restricted to
the constitutional and statutory authority which existed at the time the
home rule charter was adopted, but the statutory provisions enacted by
the Second Regular Session of the Fiftieth General Assembly in 1976,
particularly those contained in House Bill 1139 and Senate Bill 58
having been passed after the adoption of the Home Rule Charter for Weld
County are also applicable and in effect.
5. . That it was the manifest intention of the electors of Weld
County in adopting the charter that their county government should be
free to exercise not only the powers which were granted to home rule
counties by the Constitution and laws of the State of Colorado as then
in effect, but also those powers which would thereafter be granted to
home rule counties.
6. That the Second Regular Session of the Fiftieth General Assembly
enacted its legislation in relation to home rule counties with Weld
County in mind and with the intention to resolve some of the questions
which had arisen in connection with the Weld County Charter. That the
legislature may validate acts and proceedings of municipal corporations
improperly passed prior to such validating legislation and that validating
legislation, subject to constitutional limitations, is the equivalent of
original authority and cures all defects.
7. That it is also well established that such ratification and
curative effect may result by implication as well as by direct legislative
act and that reenactment of the invalid local act, if any, is not required
if it is in effect adopted by the subsequent legislative act. That
although legislative ratification of invalid local legislation most frequently
relates to acts of cities, this Court can see no distinction in this
respect between a home rule city and a home rule county and in somewhat
similar circumstances subsequent legislation has been held to have
-15-
validated county acts. That the effect of Senate Bill 58 and House Bill
1139 does not give retrospective effect to this legislation contrary to
the prohibition contained in Article II, Section 11 of the Constitution
of the State of Colorado. That the adoption of House Bill 1139 and
Senate Bill 58 by the Second Regular Session of the Fiftieth General
Assembly does not impair a vested right acquired under existing laws,
create a new obligation, impose a duty or attach a new disability in
respect to transactions or considerations already past.
8. That the County Council is a duly created body and is authorized
to exercise the powers conferred upon it by the Home Rule Charter of
Weld County, Colorado to the extent that those powers are granted to
home rule counties by the Constitution and laws of the State of Colorado.
9. That the Board of County Commissioners may lawfully enact
ordinances.
10. That the Court cannot make a declaration concerning whether
the County Council may exercise the powers contained in §14-7 of the
Weld County Home Rule Charter because of the provisions of House Bill
1139 enacted by the Second Regular Session of the Fiftieth General
Assembly which provides that "the limitations of this part 3 shall
apply to home rule counties unless provisions are included in the County
home rule charter which are, as determined by the division of local
government, equal to or more restrictive than the provisions of this
part 3" and that a determination must initially be made by the division
of local government and only after determination of that agency or a
failure of that agency to act can the Court then make a declaration thereof.
11. That no basis now exists for present declaratory relief as to
the other contentions of the Plaintiffs in relation thereto and that
determination of the validity of the other challenged sections of the
Weld County Home Rule Charter must await implementation of those sections.
12. The Plaintiffs failed to comply with C.R.C.P. 106 (a) (3) .
ia-
-16-
FINAL JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Written
Memoranda of Decision heretofore entered and pronounced by this Court
on November 25, 1975, December 18, 1975 and July 20, 1976, are reaffirmed
and readopted herein and incorporated by reference herein.
IT IS FURTHER ORDERED AND DECREED that pursuant to Rule 57 of the
Colorado Rules of Civil Procedure and C.R.S. Title 13, Article 51 , 1973,
declaratory relief is hereby granted as more specifically outlined and
declared in those three Written Memoranda of Decision dated November 25,
1975, December 18, 1975 and July 20, 1976 as hereinabove referred to.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the request for
a Writ in the nature of Quo Warranto be and is hereby denied.
IT IS FURTHER ORDERED that each of the parties pay their respective
costs and attorney's fees incurred in connection with these proceedings.
DONE IN OPEN COURT THIS day of , 1976.
BY THE COURT:
Judge
Approved as to Form:
L onard R. Liss, Attorney for Plaintiffs
Melvin Dinner, Attorney for Defendants,
The Board of County Commissioners of the
County of Weld, and Norman Carlson and
June Steinmark, individually
bert N. M lle , Dis r ct Attorney,
Attorney for Defendants, S. Lee Shehee,
Clerk and Recorder of Weld County, Colorado,
the County Council of Weld County, Colorado,
and John T. Martin, Nancy Clark, Floyd
Oliver, Bob E. White and Lacy Wilkinson,
individually
ice' _. ..
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND STATE OF COLORADO
Civil Action No. 28085
WILLIAM S. "BILL" GARNSEY and )
BARBARA TATMAN, )
)
Plaintiffs, )
)
vs. )
)
THE BOARD OF COUNTY COMMISSIONERS )
OF THE COUNTY OF WELD, and S. LEE )
SHEHEE, CLERK AND RECORDER OF )
WELD COUNTY, COLORADO,
)
Defendants, )
)
JOHN HALEY, JOE TENNESSEN, CLARK ) MEMORANDUM OF DECISION AND ORDER
EWALD, LARRY SCOTT, W. R. FARR, )
WM. H. WEBSTER, GORDON JOHNSON, )
LARRY MENEFEE, JOHN CHUCK CARLSON, )
RALPH E. WALDO, JR. , EDWARD L. )
DUNBAR, NORMAN BROWN, JOHN L. "TIM" )
WEIGAND, EDWIN LESH, GLEN R. ANDER- )
SON, J. L. "BUD" JOHNSON, WILLIAM H. )
SOUTHARD, GEORGE H. BROOKS, W. E. )"
ROSENOFF, HAROLD FARENBRUCH, CHARLEY )
BAUMGARTNER, PHILIP G. BOWLES, DONALD )
E. ALTERGOTT, WALTER L. BAIN and )
RUBEN SCHISSLER, and EMMETTSAVARD, AS )
CHAIRMAN OF THE WELD COUNTY )
REPUBLICAN EXECUTIVE COMMITTEE, )
)
Interveners. )
In this action plaintiffs challenge the validity of the Weld County Home
Rule Charter and of the election for additional members of the Board of County
Commissioners of Weld County and for members of the County Council of Weld County
scheduled to be held December 9, 1975. Plaintiffs seek declaratory relief and
also a preliminary injunction enjoining the holding of the election. Defendants
and interveners have filed motions to dismiss the complaint. An evidentiary
hearing and arguments directed to the request for a preliminary injunction and
to the motions to dismiss were held on November 21, 1975.
A prompt decision is required regarding the election. For this reason this
memorandum and decision is limited to consideration of the request for a prelim-
inary injunction. Questions raised by the motions to dismiss not bearing on 'the
r
election will be determined in a later memorandum and decision which will be
filed by the Court in due course.
It is the decision of the Court that a preliminary injunction will not be
granted in this case.
I. Power of the Court to Enjoin an Election.
Defendants and interveners assert that this Court has no authority to
enjoin an election. This is a question upon which courts differ. Some states
hold that since elections are a political matter it is improper for a court to
intrude before the election is held. Such decisions recognize, of course, that
after the election the courts may rule on the validity of the actions which were
taken and in appropriate cases may set aside the results. Other states hold
that since the holding of a void or illegal election involves the improper
expenditure of public funds, it is proper for a court to enjoin such an
election.'
Annotations on the subject class Colorado among the states following the
rule that a court may not enjoin an election.2 The basis for such classifi-
cation is not strong, consisting almost entirely of statements in two cases
decided by the Colorado Court of Appeals in 1891 and 1913 respectively.3
One Colorado Supreme Court case dating from 1907 may, perhaps, also be
interpreted as indicating a lack of such power4; however, in a 1968 decision
the Colorado Supreme Court stated that an action to enjoin the holding of a
scheduled election may be brought "on the basis that the required election
procedures or the conduct of the election has been contaminated to the extent
that the true will of the voting public may not be reflected, or that a statu-
tory requirement has not been substantially complied with by those responsible
for calling, scheduling, and conducting the election."5
This Court concludes that the statement just quoted is at present the most
authoritative formulation of Colorado law on the subject and will follow it.
1. 26 Am. Jur. 2d, Elections, Sec. 201
2. 33 A. L. R. 1376 (1924)
3. Guehelle v. Epley, 1 Colo. App. 199, 28 Pac. 89 (1891) , Pagosa Springs v.
People, 23 Colo. App. 479, 130 Pac. 618 (1913)
4. Vickery v. Wilson, 40 Colo. 490, 90 Pac. 1034 (1907)
5. See Crowe v. Wheeler, 165 Colo. 289, 294, 439 Pac. 2d 50, 52 (1968)
II. Validity of Election. j
The plaintiffs assert that the election to be held on December 9, 1975,
will be an illegal election. Although their pleadings are somewhat more
general, plaintiffs principally rest this assertion on two points, first, that
there is no statutory or other authority for the holding of the election, and
second, that the selection of the Republican and Democratic candidates by the
respective party central committees rather than at a primary election was
improper.
Colorado Revised Statutes 1973, Section 30-11-513, states in part, "Officers
of a home rule county shall be appointed or elected as provided for in the
charter." The charter provides that the additional commissioners and the council
members shall be elected at a special election to be held prior to December 15.
The statute and charter provisions are adequate authority for the election.
Much debate was engendered whether when the commissioners were setting the
election date and the accompanying time schedule they were acting pursuant to
Section 15-2 of the charter which states, "Special elections shall be called by
resolution of the Board and conducted in accordance with the provisions of state
law," or of Colorado Revised Statutes 1973, Section 30-11-107 (e) , which grants
to the commissioners power to "represent the county and have the care of the
county property and the management of the business and concerns of the county
in all cases where no other provisions are made by law."
The Court cannot see what difference this makes. In either event the
commissioners are not free to depart from the material requirements of state
law, and it is well recognized that the powers of a board of county commissioners
include "such implied powers as are reasonably necessary to the proper execution
of those expressly conferred."6
The Court has examined the time schedule adopted by the board and has
found it to be in general compliance with state law. There are some changes
6. See Farnick v. Board, 139 Colo. 481, 491, 341 Pac. 2d 467, 473 (1957). The
fact that a board could not speculate in oil and gas interests or bring an
action of debt to recover delinquent real property taxes, would not seem to
limit its power to set a date and make reasonable regulations for the conduct
of an important concern of the county, an election to carry out the expressed
will of its electors.
Av
�x�
in the time periods allotted for certain acts, apparently made necessary by the
shortness of the time between the election which adopted the charter and the
date by which the first election of officers is required to beheld. Minor
variations of time such as are involved here are not sufficient to vitiate an
election.7 The commissioners were well within their authority in making these
arrangements for the election.8 There is no contention that unqualified persons
will be allowed to vote, or qualified electors deprived of their franchise.
The best way to consider the contentions concerning the lack of a primary
election is to examine the statute prescribing the methods for nominating
candidates for election. Colorado Revised Statutes 1973, Section 1-14-201,
provides as follows:
"1-14-201. Methods of nomination. (1) Nominations for
United States senator, representative in congress, governor,
lieutenant governor, secretary of state, state treasurer,
attorney general, member of the state board of education,
regent of the university, member of the general assembly,
district attorney, and all county officers to be elected at
the general election may be made either by primary election
or by petition for nomination of an independent candidate
as provided in section 1-14-301.
"(2) Nominations for presidential electors to be elected
at the general election and for candidates to fill vacancies
to unexpired terms of representatives in congress to be
elected at a special election may be made by a convention
of a political party, or by a committee authorized by such
convention, or by petition for nomination of an independent
candidate as provided in section 1-14-301."
From an examination of the statute, several points become evident. First,
primary elections are not required for nomination of county officers for special
elections. Second, the provisions adopted for party nominations for the special.
election to be held December 9, closely parallel the provisions adopted by the
legislature for party nominations for special elections to fill vacancies in the
office of congressman. Third, there is no specific statutory provision requiring
a particular procedure for the selection of party nominees for home rule county
special elections.
The nominating procedure adopted was not imposed by the commissioners, but
rather was proposed by the political parties themselves, and agreed to by all
7. Aspen v. Howell, 170 Colo. 82, 459 Pac. 2d 764 (1969)
8. cf. Provo v. Anderson, 12 Utah 2d 417, 367 Pac. 2d 457 (1961)
candidates for the Republican nominations, the only ones for which there were
contests. The plaintiffs have not asserted that they were injured by the
procedure and so far as the record shows, neither has anyone else. The testi-
mony by one of the plaintiffs that he knew of one or more undisclosed persons
who might possibly have run if there had been a primary is too weak a foundation
for a challenge to an election. Since all of the persons directly affected by
the procedure agreed to it, and since there is nothing inherently fraudulent or
dishonest about it, it appears doubtful if any person exists who would have legal
status to challenge it.9 Accordingly, the lack of a primary offers no basis for
injunctive relief.
III. General Validity of Charter.
The home rule charter of Weld County contains the following provision, which
is not an uncommon one in documents of this sort:
"Section 16-4 -- Invalidity of Part -- Severability. If a
court of competent jurisdiction shall, by final judgment,
hold any part or provision of this Charter to be invalid
or unconstitutional, all other provisions of this Charter
shall be considered to be severable and shall not be
affected thereby and the effect of such decision shall not
extend beyond that required by the court' s ruling."
The plaintiffs attack the validity of a number, but not by any means all, of
the provisions of the charter. Even if all of the contentions of the plaintiffs
concerning the invalidity of sections of the charter are ultimately sustained,
by virtue of the section just quoted the remainder of the charter would remain
in effect. Such remainder would be sufficient to provide a frame of county
government. Accordingly, this contention is not sufficient to cause the Court
to enjoin the election.
IV. Conclusion.
We now return to the standard set by the Colorado Supreme Court for the
granting of injunctive relief in election cases. Has it been shown by plaintiffs
"that the required election procedures or the conduct of the election has been
contaminated to the extent that the true will of the voting public may not be
reflected, or that a statutory requirement has not been substantially complied
9. Pendleton v. Pace, 9 S.W. 2d 437 (Tex. Civ. App. 1928); 26 Am. Jur. 2d,
Elections, Sections 277 and 322
- A .
w
-
with by those responsible for calling, scheduling, and conducting the election"?
The answer to this question clearly is no. Accordingly, the Court should not and
cannot enjoin the forthcoming election.
The Court is aware that it has not treated in detail certain procedural
matters urged by defendants and interveners, such as availability of alternative
legal remedies and standing to sue. A number of these contentions appear to
have merit; however, this Court believes that all parties, plaintiffs, defendants
and interveners alike, have acted in good faith in this case in response to
deeply-held feelings of civic duty. Accordingly, the Court has concluded that
the public interest required that this matter be decided to the extent possible
on grounds of substance and not mere procedure..1°
V. Order.
For the reasons set forth above it is
ORDERED that the plaintiffs' petition for temporary restraining order or
preliminary injunction is DENIED.
Dated November 25, 1975.
BY URT:
District Judge
10. cf. Vickery v. Wilson, supra., Bulqo v. Maui, 50 Haw. 51, 430 Pac. 2d 321
1967)
•
'15 DEC 18 pn 3 : 20
IN THE DISTRICT COURT IN AND FOR fJ „
COUNTY OF WELD AND STATE OF COLORADO
CLEhK '"�LL
Civil Action No. 28085
WILLIAM S. "BILL" GARNSEY and )
BARBARA TATMAN, ) •
• Plaintiffs, )
)
vs. )
)
THE BOARD OF COUNTY COMMISSIONERS )
OF THE COUNTY OF WELD, and S. LEE )
SHEHEE, CLERK AND RECORDER OF )
WELD COUNTY, COLORADO, )
Defendants, )
)
JOHN HALEY, JOE TENNESSEN, CLARK ) MEMORANDUM OF DECISION AND ORDER
EWALD, LARRY SCOTT, W. R. FARR, )
WM. H. WEBSTER, GCRDON JOHNSON, )
LARRY MENEFEE, JOHN CHUCK CARLSON, )
RALPH E. WALDO, JR. , EDWARD L. )
DUNBAR, NORMAN BROWN, JOHN L. "TIM" )
WEIGAND, EDWIN LESH, GLEN R. ANDER- )
SON, J. L. "BUD" JOHNSON, WILLIAM H. )
SOUTHARD, GEORGE H. BROOKS, W. E. )
ROSENOFF, HAROLD FARENBRUCH, CHARLEY )
BAUMGARTNER, PHILIP G. BOWLES, DONALD )
E. ALTERGOTT, WALTER L. BAIN and )
RUBEN SCHISSLER, and EMMETT SAVARD, AS )
CHAIRMAN OF THE WELD COUNTY )
REPUBLICAN EXECUTIVE COMMITTEE,
)
Interveners. )
This is an action contesting the validity of certain portions of the Home
Rule Charter of Weld County and of the election recently held for two additional
members of the Board of Commissioners and five members of the new County Council.
en November 21, 1975, the Court held an evidentiary hearing and arguments
directed to the request by plaintiffs for a preliminary injunction and to the
motions for dismissal which were filed by defendants and by intervener, Emmett
Savard.
On November 25, 1975, this Court filed a Memorandum of Decision and Order
denying the request for a preliminary injunction. In that memorandum the Court
reserved the questions raised by the motions to dismiss for later decision.
This memorandum constitutes that decision.
It is the decision of this Court that the motions to dismiss will be denied.
O
c)( 1 0 4
V
/..
A motion to dismiss should be denied " 'unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief'".1 At this time the Court is in no position to determine
with certainty whether or not plaintiffs will be entitled to declaratory relief.
Since it appears that they may be entitled to relief, the motion to dismiss must
be denied, and the case should proceed to trial on its merits.
I. Standing of Plaintiffs to Sue.
The plaintiffs based their claim of standing to sue on their status as
voters and taxpayers in this county. The motions to dismiss contend that this
is insufficient to entitle them to secure declaratory relief. Under the
circumstances of this case it appears to the Court that the standing of
defendants may be sufficient.
In a. somewhat similar case the Supreme Court of Colorado made the following
statement: -
"It is contended also that plaintiff as a taxpayer, did
not have an interest sufficient to entitle him to bring
this action.
."As to the latter contention, we can conceive of no greater
interest a taxpayer can have than his interest in the form
of government under which he is required to live, or in
any proposed change thereof.xxxIf a taxpayer and citizen
of the community be denied the right to bring such an
action under the circumstances presented by this record,
then wrong must go unchallenged, and the citizen and
taxpayer reduced to mere spectator without redress. We
can think of none who have a better right."2
It does not appear as a matter of law that plaintiffs lack standing, and
accordingly, this supplies no basis for dismissal of the complaint.
II. Availability of Declaratory Relief for Interpretation of a Charter.
The motions to dismiss correctly point out that neither the rule regarding
declaratory judgments nor the Uniform Declaratory Judgments Law specifically
provide that declaratory judgments are available for the interpretation of
home rule charters. Both the rule and the law provide that they shall be given
liberal interpretation.3 A home rule charter is, in effect, legislation and is
therefore within the terms of the statute and the rule.4
1. See Davidson v. Dill, 180 Colo. 123, 131, 503 P. 2d 157, 162 (1972) .
2. See Howard v. Boulder, 132 Colo. 401, 404, 290 P. 2d 237, 238 (1955) .
3. ' Rule 57 (k) , C. R. C. P. ; C. R. S. 1973, Sec. 13-51-102.
4. Almquist v. }3iwabik, 224 Minn. 503, 28 [4. W. 2d 744 (1947).
•.+x...vn hTw'p,Y<.. • ...a.r., n[.Ywx. -..rsr p .,g. ... .�.vl`?R]'P^r r.: -.:,.; R• . .-...,. w.:n - 9- - -
C;/ .
a l
III. Necessity of Class Action.
The motions for dismissal contend that for relief to be granted, this case
must be brought as a class action. The Court has examined a number of cases
decided by the Colorado Supreme Court in which taxpayers have sought declaratory
relief. Some seem to be in the form of class actions, some not.5 The Supreme
Court appears to draw no distinction. It is the conclusion of this Court that
the employment of the class-action mechanism is not mandatory.
IV. Finality of Judgment.
The motions to dismiss also contend that any judgment rendered herein will
not be binding or terminate any dispute and will, in effect, be a mere advisory
opinion. This Court recognizes the fact that declaratory relief should be
granted only where it will terminate a controversy.6 The Supreme Judicial Court
of Maine has stated the rule as follows:
" 'The line between a set of facts which lead only to an
advisory opinion or a moot question and those which lead
to a justiciable issue is not clearly fixed, but it may
be said that when a complainant makes a claim of right
buttressed by a sufficiently substantial interest to
warrant judicial protection and asserts it against a
defendant having an adverse interest in contesting it,
a justiciable controversy exists. The presence of what
the Court concludes is an important public issue, may
be the determining factor in recognizing a taxpayer's
interest as sufficient to warrant acceptance of
jurisdiction. '"7
Since it does not appear as a matter of law that declaratory relief cannot
be given at least as to some phases of the plaintiffs' complaint, the motion to
dismiss should be denied.
V. Pleadings.
To assist in a prompt resolution of the issues presented in this case, the
Court desires to point out certain difficulties with the complaint. It is to
be noted that although the complaint recites that it is brought under the
declaratory judgment rule and statute, the request for relief is limited solely
5. Hartman v. Deaver, 165 Colo. 565, 440 P. 2d 778 (1968) ; Berman. v. Denver,
156 Colo. 538, 400 P. 2d 434 (1965) ; Bayly Manufacturing Co. v. Department
of Employment, 155 Colo. 433, 395 P. 2d 216 (1964) ; Howard v. Boulder,
supra.
6. Herod v. Denver, 159 Colo. 314, 411 P. 2d 314 (1966) ; Rule 57 (f) C. R. C. P. ;
C. R. S. 1973, Sec. 13-51-110.
7. See Maine Sui& Industries, Inc. v. Maine Industriial. Building Authority, Me.,
264 A. 2d 1, 4 (1970) .
0
to a request for injunctive relief. The portions of the charter concerning which
the plaintiffs desire declaratory relief are pointed out in a very cursory manner
making it difficult for the Court to know the details of the relief sought.
The fact that this action was filed prior to the recent election and had
as a principal purpose the request for injunctive relief against the holding
of the election made it natural that the complaint should be framed in this
manner.
The injunctive features of this case are now moot. It is clear that the
complaint will have to be amplified if it is to serve as a satisfactory basis
for declaratory relief.
Such amplification can come about either through the filing of an amended•
complaint or through the granting of motions for a more definite statement,
one of which is already on file. The Court believes that the most expeditious
course would be for the filing of an amended complaint and if the plaintiffs
desire to file one, they will be granted twenty days in which to do so. If
they do not wish to file an amended complaint, the Court will promptly call up
the motion for a more definite statement and it at present appears likely to
the Court that such motion will be granted.
Shortly after the filing of this memorandum and order the Court will contact
counsel to determine the course of action desired. In the event plaintiffs
desire to file an amended pleading they will no doubt wish to consider the
applicability of Rule 57 (j) C. R. C. P. and the equivalent statutory provision,
and also the question of whether any present party has sufficient adverse interest
in contesting the validity of charter provisions relating to the powers of the
County Council.
ORDER
For the reasons set forth above it fs
ORDERED that the motions to dismiss filed herein by defendants and by
intervener Emmett savard are DENIED.
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Dated December 18, 1975.
BY THE-00
Dist ict Judge
s
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND STATE OF COLORADO
Civil Action No. 28085
WILLIAM S. "BILL" GARNSEY and )
BARBARA TATMAN, )
)
Plaintiffs, )
vs. )
THE BOARD OF COUNTY COMMISSIONERS )
OF THE COUNTY OP WELD, and S. LEE )
SHEHEE, CLERK AND RECORDER OF )
WELD COUNTY, COLORADO, )
Defendants, )
)
JOHN HALEY, JOE TENNESSEN, CLARK ) MEMORANDUM OF DECISION
EWALD, LARRY SCOTT, W. R. FARR, )
WM. H. WEBSTER, GORDON JOHNSON, )
LARRY MENEFEE, JOHN CHUCK CARLSON, )
RALPH E. NA.JDO, JR. , EDWARD L. )
DUNBAR, NORMAN BRO;JN, JOHN L. "TIM" )
WEIGAND, EDWIN LESH, GLEN R. ALDER- )
SON, J. L. "BUD" JOHNSON, WILLIAM H. )
SOUTHARD, GEORGE H. BROOKS, W. E. )
ROSENOFF, HAROLD FARENBRUCH, CHARLEY )
BAUI.GARTNER, PHILIP G. BOWLES, DONALD )
E. ALTERGOTT, WALTER L. BA1N and )
RUBEN SCHISSLER, and EMMETT SAVARD, AS )
CHAIRMAN OF THE WELD COUNTY )REPUBLICAN EXECUTIVE COMMITTEE,
)
Interveners. )
This is an action brought for injunctive relief and for a declaratory
judgment relative to the validity of provisions of the Home Rule Charter for
Weld County, and of a special election conducted to elect certain officers to
serve thereunder. The injunctive features of this case are now moot, and the
Court will make no further reference thereto in this memorandum.
All parties have moved for summary judgment, agreeing that there are no
disputed issues of fact. Briefs have been submitted and considered by the
Court, and the arguments of the parties were heard on June 28, 1976. This case
is now ripe for final judgment, and it is the purpose of this memorandum to set
forth the basis for such judgment.
I. STANDING OF PLAINTIFFS AND SCOPE OF RELIEF TO BE GRANTED.
in a Memorandum of Decision and Order entered herein on December 18, 1975,
the Court considered questions relating to the standing of plaintiffs to secure
1 /
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1 r"' •i�' ,` ..y.i. ."'c '-"s :.,,,tr , � � .,' -. $'. ,� . M1cti' •�; . -0'r'ht:
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declaratory .relief, and the extent to which the mai.tor s raisod by their
complaint constitute justiciable disputes. Based on the reasoning set forth
in that memorandum and the authorities therein cited, the Court now concludes
that insofar as their requests for relief relate to the validity of the
special election of December 9, 1975, to the general validity of the Home Rule
Charter for Weld County, and to the general nature of the powers possessed by
Weld County as a home rule county, necessarily involved in the day-to-day
operations of Weld County government, the plaintiffs as taxpayers and citizens
of this county do have standing to secure declaratory relief and that
justiciable issues are presented.
On the other hand plaintiffs also seek relief concerning a number of
additional and very detailed provisions of the Charter. In regard to most of
these provisions it may be noted that no evidence has been presented showing
that these provisions have been exerci sed, or if so, how. It is the function
of the Courts, even in declaratory judgment actions, to decide actual cases,
not hypothetical cases. Courts exist to resolve existing disputes, not to
give abstract legal advice.'
Plaintiffs are not adversely affected by the mere presence of these
provisions, unexercised, in the Charter. Since it does not appear that these
provisions have been implemented, plaintiffs lack standing to secure declaratory
relief relating thereto.
Although there is a possibility that future questions and future disputes
will develop concerning these provisions, judicial determination must await
such developments. These matters do not now present justiciable issues.2
I1. THE SPECIAL ELECTION OF DECEMBER 9, 1975, WAS A VALID ELECTION, AND
THE SUCCESSFUL CANDIDATES THEREIN MAY DULY HOLD THE OFFICES TO WHICH THEY WERE
ELECTED.
Questions concerning the validity of the special election conducted on
December. 9, 1975, were fully considered in a Memorandum of Decision and Order
entered by the Court on November 25, 1975. The Court adheres to the findings
1. Gabrie1 v. Regents, 83 Colo. 562, 586, 267 P. 407, (1928) .
2. Taylor v. Tinsley, 7.38 Colo. 182, 330 P. 2d 954 (1958) ; Champion v.
Mnnt.rrrco, 1.28 Colo. 474, 263 P. 2d 434 (1953) ; Mentgomor' v. llrnver,
102 Cgio. 427, 80 P. 2d 434 (1938) .
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and reasoning contained in that memorandum, and will not repeat that
discussion. •
No further or subsequent claimed irregularities have been called to the
attention of the Court, and accordingly based on its previous memorandum,
the Court now determines that the election of December 9, 1975, was valid,
and those who were successful therein were duly elected. •
III. THE HOME RULE CHARTER FOR WELD COUNTY ESTABLISHES A VALID AND LAWFUL
FRAME OF GOVERNMENT FOR WELD COUNTY, AND THE COUNTY GOVERNMENT IS POSSESSED OF
ALL POWERS CONFERRED UPON HOME RULE COUNTIES BY THE CONSTITUTION OF THE STATE
OF COLORADO AND BY THE STATUTES OF THE STATE OF COLORADO, INCLUDING THE
STATUTES RELATING TO HOME RULE CITIES ENACTED BY THE SECOND REGULAR SESSION
OF THE FIFTIETH GENERAL ASSEMBLY OF COLORADO.
No objection has been raised to the manner of adoption of the Home Rule
Charter for Weld County, therefore the Court may properly make a declaration
that the Charter, as a whole, was lawfully adopted and is in full force and
effect as the frame of home rule government for this county. This declaration
should not be construed to mean that the Court is now determining that each
and every section of that Charter is valid. As has been pointed out, such a
determination may not properly be made at this time.
It is the view of this Court that home rule counties, like all other
counties in Colorado, have no "inherent powers." All powers of counties are
granted by the state, either by express grant or by necessary implication.
Thus constitutional or statutory authority for each power contained in the
Charter must be found in order for that power to be valid; however, that
authority need not be express, and may be found by implication from other
constitutional or statutory provisions.3 To this extent the Court is in
substantial agreement with the plaintiffs. •
But plaintiffs also contend that Weld County, as a home rule county, is
limited even further, and is restricted to the constitutional and statutory
authority which existed at the time the Charter was adopted. Thus they argue
3. C. f. Board v. Love, 172 Colo. 121, 470 P. 2d 861 (1970) ; Asphalt Paving
Co. v. Board, 162 Colo. 254, 425 P. 2d 289 (1967) ; Farnick v. Board, 139
Colo. 461, 341 P. 2d 467 (1959) .
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the statutory provisions enacted by the Second Regular Session of the Fiftieth
General Assembly, particularly those contained in House 13i11 1139 and Senate
Bill 58, having been passed after the adoption of the Home Rule Charter. for
Weld County, can have no effect here unless the Charter is amended to take
advantage of them. With this contention the Court does not agree.
It was the manifest intention of the electors of Weld County in adopting
the Charter that their county government should be free to exercise not only
the powers which were granted to home rule counties by the constitution and
laws of Colorado as then in effect, but also those powers which would there-
after be granted to home rule counties. This intention is set forth in
Section 2-1 of the Home Rule Charter.
It also appears that the Second Regular Session of the Fiftieth General
Assembly enacted its legislation in relation to home rule counties with Weld
County in mind, and with the intention to resolve sortie of the questions which
had arisen in connection with the Weld County Charter. That this was the
legislative intent is admitted by the defendants.
It is settled law that a legislature may validate acts and proceedings of
municipal corporations improperly passed prior to such validating legislation,
and that validating legislation, subject to constitutional, limitations, is the
equivalent of original authority and cures all defects.4 "It is also well
established that such ratification or curative effect may result by implication,
as well as by direct legislative act",5 and that re-enactment of the invalid
local act is not required if It is in effect adopted by the subsequent legisla-
tive act.6
Although legislative ratification of invalid local legislation most
frequently relates to acts of cities, this Court can see no distinction in
this respect between a home rule city and a home rule county, and in somewhat
similar circumstances subsequent legislation has been held to have validated
county acts.7
4. 62 C. J. S., "Municipal Corporations", Section 196.
5. See Sidle v. Mil.waul_co, Wise:. , 138 N. W. 76, 77 (1912) .
6. See `,amkoff v. Gerosa, 21.7 N. Y. S. 2d 365, 367 (Sp. term, ).961.) ;
Hannis v. R&n_o, Nev. , 401 P. 2d 6/8 (1965) .
7. C. f. 1'ai'n'ick v. Hord, ciRpra.
'
'^r"�i . ..a+✓'�'t''"'a�+er,.r ft?f'• let.. - .a w� fie �7we•�"��/33 ''4 ,�l � rrd` ... ....,.��f' .f ;"� �'r'�'4^.f✓ 5,-?;YC.pk,�1etke?`'.+?':4�.,:
But does this give retrospective effect to this legislation, contrary to
the prohibition contained in Article 11, Section 1.1, of the Constitution of
the State of Colorado? Under the generally accepted definitions of
retrospective or retroactive legislation, It does not.
Only when legislation takes away or impairs a vested right acquired under
existing laws, or creates a new- obligation, imposes a new duty or attaches a
new disability in respect to transactions or considerations already past,
is it retrospective or retroactive in its operation.B Moreover, an cxamiiia-
ti on of the cases on the point leads the Court to believe that the vested
rights referred to in this definition are generally in the nature of property
rights, not the "rights" of an officeholder to exercise particular governmental
functions. In Colorado validating acts of this nature have been held not to be
within the constitution prohibition against retrospective legislation.9 Under
these principles the legislation relating to home rule counties passed by the
Second Regular Session of the Fiftieth General Assembly must be given full
effect in relation to the existing provisions of the Home Rule Charter. for.
Weld County.
IV. THE COUNTY COUNCIL IS A DULY CREATED BCY)Y AID IS AUTHORIZED TO
EXERCISE THE POWERS CONFERRED UPON IT BY THE HOME RULE CHARTER FOR WELD COUNTY,
COLORADO, TO THE EXTENT THAT THOSE POWERS ARE GRANTED TO HO. RULE COUNTIES BY
THE CONSTITUTION AND LAWS OF THE STATE OF COLORADO.
Certain of the functions of the county government are assigned to a County
Council by the Home Rule Charter. Thus the County Council may be regarded as
a governing body of this county, as well as the Board of County Commissioners.
It may be doubted under the terms of C. R. S. 1973, Section 30-11-5.11,
as it existed prior to the recent amendments, that a county could have two
governing bodies. Such doubt is removed by the amendments to that section
enacted by the Second Regular Session of the Fiftieth General Assembly. Such
section now authorizes the division of county powers among various officers
and boards. The amended form of Section 30-11-511, is now applicable to Weld
B. Pcu ry v. Denver, 27 Colo. 93, 59 Pao. 747 (1291) 1 Taylor v.^ PERRA, Colo.
b-12 P. 2d 383 (1975) .
9. C. f. Earnicic v. Hoard, supra.
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County, and validates the position of the County Council, to the extent that
the powers granted to it are proper powers exercisable by a home rule county.
V. THE BOARD O1' COUNTY COMMISSIONERS MAY LAWFULLY ENACT ORDINANCES.
Article I11: of the Home Rule Charter provides that the commissioners may
enact ordinances. Defendants contend that counties may not enact ordinances
and that the Commissioners should be restricted to acting by the more
traditional resolutions. No authority has been submitted to the Court to
support this position and no statute has been cited requiring that the
Commissioners denominate their acts resolutions rather than ordinances. This
Court concludes, therefore, that the point is only one of terminology, and
that the acts of the Commissioners may, with propriety, be termed ordinances
as well as resolutions.
VI. THE COURT CANNOT LAKE A DECLARATION CONCERNING WHETHER THE COUNTY
COUNCIL MAY EXERCISE THE POWERS CONTAINS) 1N SECTION 14-7 CF THE HOME RULE
CHARTER.
The Home Rule Charter for Weld County limits the increase of revenue
from ad valorum taxation to an annual rate of five per cent, except to provide
for payment of bonds and interest. It provides, however, that upon application
by the Board of County Commissioners the County Council may, within certain
limits, grant an increased levy or the matter may be submitted to a vote of
the electors of the county at a general or special election.
No powers of this sort were authorized to be exercised by a county, other
than by general election, at the time of the adoption of the Charter; however,
House Bill 1139 enacted by the Second Regular Session of the Fiftieth General
Assembly provides that "The limitations of this Part 3 shall apply to home rule
counties unless provisions are included in the county home rule charter which
are, as determined y the division of local government, equal to or more
restrictive than the provisions of this Part 3." (Emphasis supplied.)
House Bill 1139 is now applicable to Weld County. The restrictions
contained in the Home Rule Charter appear to be more restrictive than those
provided by Title 29 Article 1 Part 3 of the statutes; however; that determina-
tion is not for. this Court to make. Such determination must initially be made
by the Division of Local Government, and only after a determination by that
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agency or a failure of that agency to act may resort to Court procedures be
contemplated. For that reason no declaration concerning the applicability of
these Charter provi sions may he made in this acti on.
VII. OTIIER CONTENTIONS OF THE PLAINTIFFS.
The Court has carefully considered the other contentions of plaintiffs,
but has concluded that no basis exists for present declaratory relief in
relation thereto. Determination of the valid;ty of the other challenged
sections of the Charter must await implementation of those sections, and,
if disputes arise in connection with those sections, application to the Courts
must be made by persons more directly affected by them than are the pia;ntiffs.
The Court recognizes the sincerity and good faith of plaintiffs' applica-
tion for these judicial determinations, and commends the civic interest and
sense of responsibility which has led them, no doubt at considerable expense,
to make this application. The Court must conclude, however, that despite
these considerations, matters of detail are not now ripe for deci si on, and
that at present the Court's determination must be limited to matters of
general application.
VIII. ORDER.
Attorneys for defendants are directed to prepare a form of declaratory
judgment herein in accordance with the views set forth in this memorandum.
Such judgment shall be submitted to attorney for plaintiffs for concurrence
as to matters of form, and thereafter submitted to the Court for approval. If
counsel are unable to agree on a form of judgment, they shall advise the Court
and a conference will be set to settle the form of judgment.
Dated July 20, 1976.
BY THR CO
/)l et t Tiivc__'
District Judge
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