Municipal Home Rule in the 1990s

• Publication year: 1999
• Pages: 95

28 Colo.Law. 95 Colorado Lawyer 1999.

1999, September, Pg. 95. Municipal Home Rule in the 1990s

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95

Vol. 28, No. 9, Pg. 95

The Colorado Lawyer
September 1999
Vol. 28, No. 9 [Page 95]

Specialty Law Columns
Government and Administrative Law News
Municipal Home Rule in the 1990s
by David W. Broadwell

The year 2002 will mark the centennial of municipal home rule in Colorado. Numerous appellate decisions during the 1990s demonstrate that home rule is alive and well in this state. A proper understanding of the parameters of home rule continues to be critical for local government attorneys, but equally so for any practitioner who deals with a home rule municipality

According to statistics maintained by the Colorado Municipal League, seventy-eight Colorado cities and towns have now adopted home rule charters, representing more than 91 percent of the municipal population in the state. An article that was published ten years ago in this column, entitled "A Primer on Municipal Home Rule in Colorado,"1 contained a concise annotation of Colorado's home rule jurisprudence In the past decade, the appellate courts have returned to the subject of home rule in at least twenty reported decisions This article summarizes recent developments in this area of the law.

Changes at the Top

Most of the decisions reported below reflect a highly favorable judicial attitude toward home rule authority. The courts have continued to be more willing than not to determine a particular subject to be a "matter of local concern" and to find in favor of local control of that subject. However, the prerogative of citizens in home rule municipalities to fashion their own local governments and conduct their own affairs free from state interference has not been unscathed in the 1990s. Home rule power, having its genesis in Article XX of the state constitution, is and always has been subject to diminution via a subsequent constitutional amendment.

For example, one of the most time-honored prerogatives of home rule municipalities has been to define the extent of their own financial powers. The adoption of the TABOR amendment2 to the constitution in 1992, however, imposed uniform limitations on the taxing, spending, and debt authority of all local governments, including home rule municipalities. Likewise, Colorado voters approved an initiated constitutional amendment in 1994 to impose term limitations on all local elected officials, including those in home rule municipalities.3 Once again, the authority to establish the qualifications for office holders had traditionally been seen as a basic home rule prerogative,4 and this subject (including the particular concept of term limitation) had been addressed in numerous municipal charters prior to 1994. These local laws were effectively swept away with the adoption of the 1994 amendment.

Significantly, neither of these constitutional amendments changed the text of Article XX itself.5 Instead, the amendments simply added new language elsewhere in the constitution that incidentally impaired home rule authority by indicating an intent to supersede the powers exercised by home rule municipalities. In 1994, Colorado voters also adopted a "single subject" rule for future constitutional amendments.6 Now, a serious question exists about whether it will be possible in the future to address a subject elsewhere in the constitution and expressly or impliedly amend or repeal any part of Article XX at the same time.

Since the enactment of the single subject rule, the Colorado Supreme Court has twice held that a proposed initiated amendment that changes one part of the constitution but incidentally impairs home rule authority under Article XX violates the single subject rule.7 The decisions dealt with initiatives on the broad subject of "judicial qualifications," where the initiatives would have incidentally affected the ability of home rule municipalities to define the qualifications of their own municipal judges.

Employment Cases

Virtually every year, the Colorado General Assembly adopts new laws that purport to address matters of statewide concern and thereby preempt home rule authority, or are ambiguous in terms of their applicability to home rule municipalities Municipalities rarely mount a frontal assault against these new laws, instead usually waiting for a real case in controversy to obtain a judicial determination on the applicability of the law. The typical case involves a situation where a private party and a home rule municipality are locked in a dispute, the private party claims that the municipality has violated a particular statute, and the municipality claims that it is not...