The first power hereby reserved by the people is the initiative…”
— Constitution of the State of Colorado
Former County Commissioner Michael Whiting and I sat at one of the sidewalk tables in front of The Juice Goddess restaurant on Lewis Street, discussing local politics, and in particular the 11 “Liberty Zone” citizen initiatives that were the subject of circulated petitions in 2013, and later, the reason behind a lawsuit filed in District Court, later known as 16CV4.
That lawsuit, filed on behalf of Archuleta County plaintiffs Pat Alley, Dave Brackhahn, Wayne Bryant, Greg Giehl, Cole Graham, Vernon Greenamyer, Bill Gottschalk, Sue Gottschalk, Stephen Keno, Tom Kramer, Jeffrey Maehr, Sharon Parker, Tracy Salazar, Dennis Spencer, Dave West and ‘John and Jane Does 1-600′, alleged that the Archuleta Board of County Commissioners and then-County Attorney Todd Starr “willfully, wantonly aided, abetted and colluded to deprive Plaintiffs’ rights under the Colorado Constitution and Colorado Statutes reserving said rights.”
“Defendants knew or should have known these rights and laws and their fiduciary duty to support said rights and laws, and have acted in their personal capacities despite repeated NOTICES by Plaintiffs.”
You can read the full filing on the LibertyZone.org website.
Mr. Whiting served on the BOCC from January 2011 through January 2019, and was — as noted above — one of the commissioners who allegedly “aided, abetted and colluded” to deprive these local activists of their rights following the presentation of the petitions to the BOCC in 2013. He spoke calmly, perhaps even affectionately, about the Liberty Zone effort… considering that he’d been accused of willful and wanton behavior.
He had met with the ‘County Guard’ — a group that included many of the same people involved in 16CV4 — when he was a County Commissioner candidate in 2010.
“They asked to meet with me, to find out what I was about. They were deciding who to support and who not to support, in the election. We met several times. And when they were preparing to come forward with their 11 measures, I agreed to sit down with them and review them. This was when I was a commissioner.
“They felt like they weren’t being heard. And I felt like they weren’t really being heard, as well.
“Turns out, no one was actually being heard in the community, except for the people who were always being heard. And that’s one of the reasons I ran for office in the first place.
“So the County Guard was part of a very large boat along with other activists in the community. People concerned about government transparency and accountability. I was happy to explore what they had to say.”
I mentioned that the Liberty Zone folks managed to arrange a work session with the BOCC and Attorney Starr in late 2013, but that the meeting was reportedly structured to prevent any authentic conversation about the 11 Liberty Zone petitions.
Mr. Whiting: “I pushed for that work session on their behalf, because they weren’t getting anywhere. As commissioner, I argued that, look, these guys have legitimate concerns, they have the right to meet with us. They were organized. It wasn’t just individuals randomly complaining. They’d gotten together and brought their concerns forward — in written form, I might add.”
Mr. Whiting explained that, although he was sympathetic to the complaints brought forward, he assumed that some of the more radical portions of the Liberty Zone agenda might create repercussions from the federal or state government, and that those repercussions might have fiscal impacts on the community, such as the withholding of grants by those governments.
Because the Liberty Zone petitioners were never able to define the fiscal impacts of the proposed changes to Archuleta County laws, Mr. Whiting stated, he was ultimately unwilling to support the placement of the proposed measures on the ballot.
The Liberty Zone group believed, however, that the Colorado Revised Statutes, as well as the Colorado Constitution, granted them direct access to placing a citizen initiative on the ballot, aligned with this statute:
CRS 30-11-103.5 : County petitions and referred measures
The procedures for placing an issue or question on the ballot by a petition of the electors of a county that is pursuant to statute or the state constitution or that a board of county commissioners may refer to a vote of the electors pursuant to statute or the state constitution shall, to the extent no such procedures are prescribed by statute, charter, or the state constitution, follow as nearly as practicable the procedures for municipal initiatives and referred measures under part 1 of article 11 of title 31, C.R.S. The county clerk and recorder shall resolve any questions about the applicability of the procedures in part 1 of article 11 of title 31, C.R.S.
(My emphasis added.)
The BOCC could have decided to use their own authority to place one or more of the 11 issues cited in the Liberty Zone petitions on the 2014 ballot, or on the 2015 ballot, but the BOCC chose instead to ignore repeated requests for dialogue.
County Attorney Todd Starr argued, meanwhile, that a Colorado Court of Appeals ruling in the case of Daniel Dellinger v. Board of County Commissioners for the County of Teller denies citizens the right to bring forward citizen initiatives in ‘statutory counties’ like Archuleta County.
You can read the Dellinger ruling here.
From the 16CV4 lawsuit filing:
“Defendants suppressed [the Plaintiffs’ constitutional rights] and colluded, willfully and wantonly, to subvert said rights and the laws of Colorado in denying the ballot initiative process to the Plaintiffs, and all other signatories of the initiative petitions…”
I’m not a rocket scientist, nor an attorney, but a casual reading the Dellinger case gave me the distinct impression that the Liberty Zone petitioners were barking up the wrong political tree when they filed a suit in District Court claiming the right to petition issues onto the County ballot.
The wrong tree, and a rather expensive tree to boot.
But the story has not yet reached a final conclusion.
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.