A district court judge ruled that a citizen-led anti-mask initiative with more than 1,700 signatures in support cannot be placed on a ballot because it is “administrative” in nature and outside the electorate’s legislative purview. (Josh Stephenson/Special to the Herald, File)
A district court judge ruled that a citizen-led anti-mask initiative with more than 1,700 signatures in support cannot be placed on a ballot because it is “administrative” in nature and outside the electorate’s legislative purview. (Josh Stephenson/Special to the Herald, File)

A district court judge ruled this week that a proposed citizen initiative ordinance that would prohibit law enforcement officers in Durango from concealing their identities is ineligible for placement on the municipal ballot.

Sixth Judicial District Judge Reid Stewart issued his ruling Thursday, finding the proposed ordinance to be “administrative” in nature, meaning it concerns executive functions and day-to-day policy that is not subject to the electorate’s legislative power.

The city of Durango received the declaratory judgment on Friday after it had sought a ruling last month for guidance on whether the initiative – which collected more than 1,700 signatures of support from Durango residents and was certified by the city clerk last month – could legally go to an election.

Specifically, the city sought a judgment on whether the initiative’s proposed ordinance, which prohibits law enforcement from concealing their identities within city limits except under certain circumstances, was “legislative” or “administrative” in nature.

City Attorney Mark Morgan previously told The Durango Herald a legislative ordinance sets community standards, while an administrative ordinance regulates government acts and behavior.

The former is eligible to be brought by initiative for ballot placement while the latter is not.

“The people have reserved the right to legislate, not to determine how previously enacted public policies will be administered or executed,” the order said in a review of the electorate’s constitutional right to legislate and past Colorado Supreme Court rulings on “legislative” versus “administrative.”

Stewart’s order weighed arguments for why the proposed anti-mask ordinance could fit under either class, and explained why it is ultimately administrative and the initiative is not eligible for ballot placement.

The court applied three tests, outlined in Stewart’s order, to determine what category the initiative falls under.

The first test was whether the ordinance establishes a new policy of “permanent and general application (legislative), or instead merely carries out existing policy (administrative).”

The second test was whether the ordinance declares public policy or implements previously adopted policy.

The third test was whether the ordinance significantly amends existing law or administers it.

What happens next?

City Attorney Mark Morgan said the election for the citizen initiative is formally canceled – at least for now. The No Secret Police group has the right to appeal the district court ruling, and should an appellate court reverse the district court’s decision, the city would be “compelled” to call an election in November or next spring, or whatever time frame would best match the spirit of the city’s laws on the initiative election process, he said. Morgan said the district court’s ruling was made Thursday evening just as ballots for La Plata County’s June 30 election were about to be printed. The city received the court order on Friday and contacted La Plata County, which contacted ballot printers to see if printing could be stopped before the city incurred printing costs and an ineligible measure was placed on the ballots. Morgan said he was unsure as of Friday afternoon whether printing was stopped in time to remove the proposed ordinance. He said the city’s initial estimates for the election’s cost was between $60,000 and $70,000. It won’t have a final tab until it’s clear how many ballots were able to be stopped from printing the initiative on Friday.

The court acknowledged the anti-mask ordinance declares a new municipal policy about law enforcement transparency that is not case-specific but generally applicable, that would amend municipal code rather than direct day-to-day adherence to an existing policy – all points for considering it legislative in nature.

But the court also noted, in short, the ordinance directs day-to-day operations of police and executive officials with regard to “uniform requirements, equipment specifications, and identification protocols” – which the court identified as administrative policy and “clearly beyond the scope of initiative power.”

“The specific requirements of the proposed ordinance appear to more clearly fall within the category of administrative matters that implement, alter, or modify existing public safety policies rather than declaring new ones. These operational details are analogous to matters the courts have identified as administrative, such as “the purchase of city vehicles, establishment of parking fees, and the proper maintenance of city-owned lands and buildings,” the order said.

The court also noted the possibility that policy prohibiting federal law enforcement such as U.S. Immigration and Customs Enforcement officers – whose controversial tactic of wearing masks when detaining people and clashing with protesters motivated the No Secret Police movement in Durango – could butt heads with the Supremacy Clause.

The ruling comes just days after No Secret Police, the group behind the initiative, criticized the city for seeking the judgment in a news release and announced it had filed a motion to have the city’s request for a declaratory judgment dismissed.

A news release also criticized the city for launching a “lawsuit” against the No Secret Police committee in requesting the judgment and naming organizers Ted Wright and Mick Souder in the filing.

No Secret Police organizer Ted Wright did not immediately respond to a request for comment Friday.

He previously told the Herald making a distinction between legislative and administrative ordinances after the citizen initiative was already certified is an attempt by the city to defeat the ordinance.

Morgan rejected that notion.

In public comments to City Council at several meetings, Wright said councilors could adopt the ordinance by themselves without requiring residents to pursue an initiative or an election.

Morgan said in an interview on Friday the request for declaratory judgment was not “adversarial” against the No Secret Police group; rather, the request was neutral and did not ask for a judgment for or against moving the initiative forward.

“I think the fact that the federal government is masking agents and doing what they’re doing with immigration is morally incorrect – that it’s deplorable behavior – but professionally, I had an obligation to seek the proper legal advice for the city, and I feel satisfied that the court did that,” Morgan said.

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