The focus of this analysis is on the definition, creation, and stipulation of powers of “Special Districts” as described in the Title 32 Revised Statutes.
32-11.5-103. Definitions.
(20) “Special district” means any quasi-municipal corporation and political subdivision
organized or acting pursuant to the provisions of this article. “Special district” does not include any
entity organized or acting pursuant to the provisions of article 8 of title 29, article 20 of title 30,
article 25 of title 31, or articles 41 to 50 of title 37, C.R.S.
So, if a “Special District” is to be created we must find somewhere in the step by step procedures provided in Title 32 steps which accomplish the creation of a quasi-municipal corporation and steps or voting that will subdivide some level/jurisdiction of government to produce a political subdivision of that government.
Title 32 provides the only procedures for the creation of a Special District in Colorado by a small group of petitioners. However, the craftors include measures that have approving legislators specify powers and authorities, to tax and of Emmett Domain among others, to a virtual or proxy Special District and virtual or proxy Officers written into the legislation. In other words legislators create a virtual or proxy special district, but the procedures allow only petitioners to create a real “Special District.”
If legislators wanted to create a “real” Special District they could only do so by voting on a legislative Act. Since the legislature or General Assembly is a body of representatives their vote is akin to all registered voters in Colorado voting on a state wide ballot measure. These voters hold all and the only political authority to subdivide the government of Colorado and create political subdivisions.
It is by vote that a superior governmental jurisdiction provides “public Foundation” ( https://en.wikipedia.org/wiki/Special_district_(United_States)#Public_foundation ) and creates a specific “real” subordinate political subdivision.
This is why, in other states that understand how democratic government works, only the state legislature creates “Special Districts.” This is also why they have few in number unlike Colorado that has over 2,400 private organizations, none of which are political subdivisions, and are deceptively called “Special Districts.”
The use of a proxy or virtual “special District” (one described on paper only and is not real ) is a trick used by the craters of Title 32 legislation to prevent the registered voters and to divest their chosen representatives from voting on any issues that create any quasi-municipal corporation or any political subdivision. They seek to empower only the local voters who desire a specific service to create a “Special District”, with only service plan review by County Commissioners. This policy is the equivalent of allowing an unsupervised gang of adolescents, lacking developed frontal lobes, free access to loot an unlocked candy machine.
So instead of a legal vote, powers are stipulated for a proxy/virtual “Special District” in Title 32. These powers become the crucial elements in an attempt to transfer powers to the real organization by assigning a name to the organization and thereafter declaring it to be a “Special District.” So, the creators of Title 32 use name association to transfer “Powers” the legislature gives to a virtual “Special District”, to a private organization and then declare it to be a “Special District.”
So, there are two processes to examine, those procedures that purport to create a “Special District” and the trick that attempts to assign powers to real private organizations by calling them “Special Districts”.
EXAMINATION OF THE TITLE 32 PETITIONER STEPS TO CREATE A “SPECIAL DISTRICT”
Analysis
Step 1 32-1-202. Filing of service plan required – report of filing – contents – fee.
This step is all about a service plan
Step 2 32-1-203. Action on service plan – criteria(1) The board of county commissioners of each
county which has territory included within the proposed special district, ……………..
This step is all about a service plan
Step 3 32-1-204. political hearing on service plan – procedures – decision
Upon the incorporation of such changes, …………….
This step is all about a service plan
Step4 32-1-301. Petition for organization. (1) After approval of the service plan pursuant to
section 32-1-205 or 32-1-206……………………
This step is all about a service plan
Step 5 32-1-303. Court jurisdiction – transfer of file – judge not disqualified. (1) (a) The district
court sitting in or for any county in this state is vested with ………………
This step is all about a court jurisdiction
Step 6 32-1-304. Notice of court hearing.
This step is all about a court notice
Step 7 32-1-305. Court hearing – election – declaration of organization.
32-1-305 (1) – (5) Theses steps are all about court proceedings, elections & petitions preceding any actual creation of an organization (for example).
(5) At such election the voter shall vote for or against the organization of the special district
and for five electors of the district who shall constitute the board of the special district, if organized.
Step 8 Special District creation 32-1-305 (6) If a majority of the votes cast at said election are in favor of the organization and the court determines the election was held in accordance with articles 1 to 13.5 of title 1, C.R.S., the court shall declare the special district organized and give the special district the corporate name designated in the petition, by which it shall thereafter be known in all proceedings, and designate the first board elected. Thereupon the special district shall be a quasi-municipal corporation and a political subdivision of the state of Colorado with all the powers thereof.
Because the creators of this legislation fail to distinguish between an “organization” that exists before a District Court provides a judgment of “organized” and the organization that exists afterwards, they call both a “Special District”. This is either sloppy thinking or intentional deception. In any case the section must be corrected to illuminate this distinction for proper analysis.
Step 8 The corrected section “Special District creation 32-1-305 (6)”
If a majority of the votes cast at said election are in favor of the organization and the court determines the election was held in accordance with articles 1 to 13.5 of title 1, C.R.S., the court shall declare the special district organization organized and give the special district organization the corporate name designated in the petition, by which it shall thereafter be known in all proceedings, and designate the first board elected. Thereupon the special district organization shall be a quasi-municipal corporation and a political subdivision of the state of Colorado with all the powers thereof.
Now after reading the corrected section it is clear that voting electors in a service plan area have created an organization and the court has delivered a judgment of “organized”, and assigned a name and designated the first board as elected. So, at this point in the proceeding an unorganized organization has been made into an organized organization. We have not yet seen the making of a “Special District.” Or to be more precise we have not yet seen the making of anything with municipal elements from Title 31,“quasi-municipal or otherwise, nor anything corporate like incorporation by the Secretary of State. Likewise, neither the state voters nor the legislature have voted to create a quasi-municipal corporation or a political subdivision of the state of Colorado “with all the powers thereof.”
Such a making would produce some kind of “Quasi-municipal” components in or aspects of the organization. The gold standard for producing anything municipal in Colorado is Title 31, the legislation governing the formation of municipalities. Yet we find no reference to Title 31 or any of its internal procedures. For example two key elements that make an organization “Municipal” , quasi or otherwise, are systems and procedures that insure the provision of “Due process” and “Equal protection under the law.” Not only is Title 32 devoid of these words and phrases, it is also devoid of a definition of “quasi-municipal corporation.” Title 32 is also devoid of a definition for “political subdivision.”
So the “organization” produced by local voters and the Court contains no elements that can be identified as “municipal”, quasi or otherwise.
But, the organization is not only missing the quasi-municipal components to satisfy the definition of a “Special District”, it is also missing any elements in the legal definition of corporate or incorporation or corporation in Colorado. Such elements are only obtained by satisfying registration requirements found in the office of the Secretary of State.
So, “organizations” in Colorado, expecting to project a partial identity as a quasi-municipal corporation, have no substantive evidence or argument to mount in their defense.
Loss of one part of a two part definition is enough to exclude a body from the entire definition. However, going forward some committed souks may wish to argue for a singular “political subdivision” definition as being necessary and sufficient. But, this second part of the two part definition of a “Special District”, also cannot withstand the light of day under research and analysis.
Here again is the definition in the definitions section of the Title 32 legislation.
32-11.5-103. Definitions.
(20) “Special district” means any quasi-municipal corporation and political subdivision organized or acting pursuant to the provisions of this article.
The definition fails to specify the level of government that is to subdivided, either State, County, or municipal. Later in section 32-1-305 (6) we are informed that it is “a political subdivision of the state of Colorado.” Well if this is the case then, given the precedent of “Public Foundation”, it is all the voters in the state of Colorado or their chosen representatives, that own the exclusive right to subdivide the government of Colorado and create a political subdivision called a “Special District.”
Again, the organization cannot be transformed by either declaration or mere word and phrase association. It has to be made into a political subdivision by an act of the voters or their chosen representatives in a specific level of government, either State, County, or Municipal, by a ballot measure or an Act which actually subdivides a level of government and delegates powers.
The principle is called “Public Foundation.”
public foundation precedent
“Special districts, like all political entities, have public foundation.[15][16][17] The landmark case of the U.S. Supreme Court addressing political versus private charters was Dartmouth College v. Woodward in 1819.[18] Dartmouth established the fundamental differences between political and private organizations. Critically, a government must be founded by all of the people of a governmental area or by their governmental representatives.[18][19][20][21][22][23][24]” (https://en.wikipedia.org/wiki/political ) (https://en.wikipedia.org/wiki/Special_district_(United_States)#Public_foundation)
So, the procedures of Title 32 do not inculcate the organization with any quasi-municipal corporation components (because we don’t know what they are), and a political subdivision is not created by vote of the electors of the state government political jurisdiction.
Therefore, the only entity that has been created is a private organization with a name, unincorporated in the State of Colorado.
But, we know by last count that there are at least 2,400 private organizations that call themselves “Special Districts.” So, the next question is this Exactly what powers and authorities typified by “Special Districts”, can these private organizations actually exercise?
This is where the aforementioned “TRICK” comes into play. The cereators of this legislation include several sections in which the legislature specifies powers for a generic “Special District.” As defined in Title 32. This is a “Special District” on paper, essentially a virtual or model or proxy of something that could be real. This generic “Special District” has no name, it has virtual operating agents like virtual officers and virtual employees but they have no names. While the legislature can specify powers of a virtual “Special District, as a means of defining a model, it can only delegate powers by voting on an Act that creates a real political subdivision.
However, there is no law that prevents the Legislature from assigning rights or stipulating powers for a generic model or virtual “Special District.” Here are some of the sections in the legislation where this is done.
32-1-1001. Common powers – definitions. (1) For and on behalf of the special district the
board has the following powers:
(a) To have perpetual existence;
(b) To have and use a corporate seal;
(c) To sue and be sued and to be a party to suits, actions, and proceedings;
(d) (I) To enter into contracts and agreements affecting the affairs of the special district………….
This is a stipulation of powers of a virtual board of a virtual “Special District.”
32-1-1002. Fire protection districts – additional powers and duties. (1) In addition to the
powers specified in section 32-1-1001, the board of any fire protection district has the following
powers for and on behalf of such district:
(a) To acquire, dispose of, or encumber fire stations, fire protection and fire fighting
Colorado Revised Statutes 2016………….
This is a stipulation of powers of a virtual “Special District.”
32-1-1003. Health service districts – additional powers. (1) In addition to the powers
specified in section 32-1-1001, the board of any health service district has any or all of the following
powers for and on behalf of such district:
(a) To establish, maintain, or operate, directly or indirectly through lease to or from other
parties or other arrangement, political hospitals, convalescent centers, nursing care facilities,
intermediate care facilities, emergency facilities, community clinics, or other facilities providing
Uncertified Printout health and personal care services, ……………………….
This is a stipulation of powers of a virtual board of a virtual “Special District.”
32-1-1005. Park and recreation districts – additional powers – limitations. (1) In
addition to the powers specified in section 32-1-1001, the board of any park and recreation district
has the following powers for and on behalf of such district:
(a) To operate a system of television relay and translator facilities and to use, acquire, equip,
and maintain land, buildings, and other recreational facilities therefor;
(b) To use the power granted in section 32-1-1001 (1) (f) for the establishment of
recreational facilities,………………………….
This is a stipulation of powers of a virtual board of a virtual “Special District.”
32-1-1101. Common financial powers. (1) For and on behalf of the special district, the
board has the following powers:
(a) To levy and collect ad valorem taxes on and against all taxable property within the
special district, which shall not be limited except as provided in section 39-10-111 (11), C.R.S., and
in part 3 of article 1 of title 29, C.R.S. Any election on the question of an increased levy pursuant
to section 29-1-302, C.R.S., shall be conducted as a special election in accordance with articles 1 to
13.5 of title 1, C.R.S.
(b) To levy taxes and collect revenue, ………………………….
This is a stipulation of powers of a virtual board of a virtual “Special District.”
32-1-607. Powers. (1) Subject to the provisions of section 32-1-602 (2) (e), a consolidated
district has all of the rights, powers, and authorities which were granted by statute to each of the
special districts which are consolidated and may have the rights, powers, and authorities granted to
a metropolitan district. …………………………
This is a stipulation of powers of a virtual “Consolidated District.”
So, the “Trick” is to build a model and name it a “Special District”, then in the procedures for creating a “Special District”, after the Judge declares the organization to be “Organized” simply declare the “Organization” to be a “Special District”, where upon it receives the powers stipulated for the model.
So, my argument is that a stipulation of powers to a model with a name (“Special District”) is in no way a delegation of powers to a real private organization that is declared a “Special District.”
There is just no getting around it. As much as we may love and want to promote the activism of local voters in a randomly defined area or in a postal zip code area, these voters do not have the vision or breth of experience, or political authority to choose how best to provide the services they require. That wisdom lies in the wider Colorado community of voters represented by municipal officials, County Commissioners, or state Legislators, using the instrument called Title 31.
So, as a result of the passage of Title 32 and preceding legislation like it, we now have more than 2,400 rogue organizations, illegally operating on the landscape of Colorado.
But there is more. Because the creators of Title 32 are unfamiliar with the concept of “making” anything, they also never included any directives to file for non-profit 501 (c)(3) status with the IRS. Organizations who have filed and have been approved, receive a tax break. Otherwise taxes are owed. Most if not all “Special Districts” in Colorado claim to be operating as “non-profits”, and its doubtful that any have filed for 501 (c)(3) status.
Goggle search:
“Special districts are exempt from sales, use and other taxes for equipment, supplies and services allowing lower overhead costs. A special district is not in the business of making a profit from the facilities and services provided.”
Some of these “Special Districts” have been operating for decades funded by our property taxes. But what if they are actually just private organizations having never obtained a 501(c)(3) designation from the IRS? Do they owe back taxes? You and I as individuals cannot sue a State to recover our tax payments, but that constitutional restriction does not apply to the IRS.
32-1-305 (7) – (8) This step is all about protecting what has been done from ever being undone in the State Judicial System. Which is why, after 35 days from creation, the only remedy is in Federal District Court.
(7) If an order is entered declaring the special district organized, such order shall be deemed
final, and no appeal or other remedy shall lie therefrom. The entry of such order shall finally and
conclusively establish the regular organization of the special district against all persons except the
state of Colorado in an action in the nature of quo warranto commenced by the attorney general
within thirty-five days after entry of such order declaring such special district organized and not
otherwise. The organization of said special district shall not be directly or collaterally questioned in
any suit, action, or proceeding except as expressly authorized in this subsection (7).
CONCLUSIONS
- It would be charitable to say that the creators of Title 32 are engaging in a Domestic Political Ideologically based Experiment. Realistically, thee creators are ideologues who believe that the “free enterprise” corporate world can do any thing better and cheaper than government. Even though there is neither creditable nor any substantial evidence to support this belief. Corporate profits are large because the externalizes of pollution are left to the taxpayers and government to clean up. No, there is no experiment here. The creators of Title 32 are not fond of constitutional democratic government. In fact the creators of Title 32 are on a Domestic Political Ideologically based Mission to undermine the expansion of Title 31 based democratic government in Colorado, and that is what Title 32 is all about. With more than 2,400 rogue organizations now operating on the landscape of Colorado the Legislature has lost control of the design of government and the PERA retirement system. Such a free for all with out a referee ignores the provision of safety, security, and well being of its citizens, and will ultimately bankrupt the State.
- The creators of Title 32 are so obsessed with their mission that they cannot even define the “quasi-municipal corporation and political subdivision” that their procedures purport to create. In the Definitions section they speak only of a “political subdivision.” But in the procedures they speak of a “political subdivision” of the state of Colorado.” They are unaware that a “Special District” can be political subdivision of a State, County, or home rule municipal government, and so there is a need to have the correct qualified voters to subdivide the political jurisdiction in which the “Special District” will be a political subdivision. So, the creators simply pick voters in a random or zip code area having nothing to do with a government jurisdiction. Consequently the creators of Title 32 end up picking the wrong block of voters and not all the voters in a government jurisdiction that are required to create a “Special District.” And these local voters have no political authority what so ever to subdivide any government to create a political subdivision. This is a violation of “Public Foundation” precedent and is unconstitutional.
- No Colorado government has ever delegated any “Powers” to a real private organization formed using the procedures in Title 32. Instead, stipulation of powers was made, in sections of Title 32, to a virtual or proxy generic “Special District” on paper. This is in no way a delegation of power. The idea that one can specify powers in a model and name it a “Special District”, and then if you call the private organization a “Special District”, it will somehow, thru name association, absorb the powers stipulated for the virtual or proxy generic “Special District” on paper is absurd. This scheme is a shell game, and harbors no legal currency. It needs examination by a Federal District Court Judge to explain any constitutional violations.
- With application of the Title 32 procedures the private organization gains no elements that can normally be considered to be Municipal. They vote for an “Organization” to deliver a service plan, nothing more. And being only a subset of a larger jurisdictional group of qualified voters they exercise no political authority to create anything municipal. So, one conclusion derived from the foregoing analysis is that given the definition of a “Special District” in Title 32, no quasi-municipal corporation has ever been created. And given that the State legislature has never created a Title 32 “Special District”, and given that the analysis is correct, then there are no Title 32“Special Districts” in the state of Colorado. There are only private organizations created by local voters voting on a service plan, and a District court judge declaring the enterprise as “Organized.”
- Private organizations in Colorado that claim to be “Special Districts”, but were not created by a vote on an Act in t he Legislature, or by a vote by County Commissioners, or by a vote by officers of a municipal government, or by a vote by all the voters in a governmental jurisdiction on a ballot measure, are not a political subdivision of any jurisdiction and do not have any legal powers of Eminent Domain or taxation or any powers specified for a virtual, generic Proxy “Special District” on paper. Consequently, County Clerk and Recorders should not entertain the placement of tax and/or bond measures on election ballots by these private organizations, and County Treasurers should not be distributing tax payments resulting from property assessment increases to these private organizations. Likewise it is illegal for these private organizations to enroll their employees in the state run PERA retirement system. These employees should be earning credits to collect Social Security benefits, while also earning benefits from the private employer’s retirement system.
If you agree with the foregoing analysis and conclusions about Title 32, or if you are simply curious about what a Federal District Court Judge would have to say about Title 32, then go to https:// gofundme.org/responsivegovernmentforpublicsafety, and donate to fund attorney fees and court costs. I will find an attorney to prepare a brief and file it in Federal District Court.
Your donation will satisfy your curiosity, but more than that if the court judgement is in support of the above conclusions, you will have made a significant contribution to the stimulation of dialogue about fixing government in Colorado and perhaps also in other states of the union.
It has been said that “the solution to the problems of democracy is more democracy.” Even the smallest of donations can help with the creation of more democracy and public safety for the people of Evergreen and all other rural people in Colorado burdened by the misguided illegal taxation by private organizations.