A divided Colorado Supreme Court struck a blow to proponents of a four-lane entrance into town on Monday, ruling that a city of Aspen hearing officer correctly quashed two ballot initiatives in 2007.
In a 5-2 ruling, the majority held that the “straight shot” initiatives put forth by Jeffrey Evans and Curtis Vagneur intruded on the city’s administrative power to manage its open space.
Evans and Vagneur were seeking to put the initiatives on a city ballot that would allow voters to choose between two options for a realigned Highway 82 crossing the Marolt open space, eliminating the S curves. The ballot measures were nearly identical, with the main difference being that one had plans for a “cut-and-cover” tunnel and the other an at-grade roadway across the open space.
As the 50-page ruling notes, upper-valley residents have been debating the entrance to Aspen since the 1960s. The high court itself had studied the issue since 2010, when it decided to hear the case.
In 2007, Vagneur and Evans submitted their petition for the initiatives, which the Aspen City Clerk’s office approved for a special election. But Aspen residents Les Holst, Cliff Weiss and Terry Paulson challenged the measures on the grounds that the initiatives dealt with administrative, not legislative, matters. Karen Goldman, hired by the city to be the hearing officer in the matter, rejected the petition.
Goldman said, in essence, that the initiatives overreached. She agreed with the challengers’ arguments that the proposals took many of the details of building a road out of the hands of the city and the state department of transportation.
That ruling was upheld in district court and then in the Colorado Court of Appeals.
The Colorado Supreme Court examined whether the appellate court had erred in finding that the initiatives were outside the scope of the Colorado Constitution’s initiative power.
In Monday’s ruling, the majority found that the initiatives “seek to circumvent a complex and multi-layered administrative process” for the approval of the location and design of a state highway, according to Justice Monica M. Márquez, who wrote Monday’s ruling.
The process incorporated both technical expertise and public input, and involved “not only the city of Aspen, but also the Colorado Department of Transportation and the Federal Highway Administration,” Márquez wrote.
The initiatives “fundamentally seek to change the design that was previously approved by the state and federal agencies in the lengthy administrative process required by federal law,” the ruling says. “We conclude that these initiatives impermissibly intrude on the administrative power of the city to manage city-owned open space.”
City Attorney Jim True did not hold his current position at the time but he sat in on the hearing in which Goldman rejected the initiative petitions. He said Monday that the city is pleased with the result and reiterated the judicial levels that upheld the city’s position.
The state supreme court evaluated the case thoroughly because of the constitutional issues involved, he said.
“They obviously looked at this very, very carefully,” True said.
Evans said he had not yet read the ruling but said the outcome was unfortunate.
The justices “will have expanded the meaning of the administrative realm, which reduces that portion of governmental activity available to us citizens to affect through the initiative process,” he said.
Justices Nathan Coats and Allison Eid dissented. Coats wrote that the majority of the court “shifts the focus of the inquiry from the nature of the popular initiative itself to the nature of municipal actions likely to be affected by it.”
The majority’s rationale rests primarily on the assumption that the initiatives involve matters beyond the scope of the voting public and the fact that they would disrupt a number of contractual and administrative decisions with other governments that the city already has negotiated, Coats wrote.
“While these considerations may evidence the inconvenience and perhaps lack of wisdom in fundamentally changing courses at this late date ... they most certainly do not render the initiatives [administrative] rather than legislative,” Coats’ dissent says.
Evans said he wasn’t sure what his next step will be, saying it depends on the language in the ruling. Appealing to the U.S. Supreme Court is “somewhat unlikely,” he said.
His dilemma is that making a ballot measure more detailed is more likely to reassure voters about the issue before them; on the other hand, a less specific measure affords a better chance that he and Vagneur “will not be seen as making administrative decisions,” Evans said.