"Home Rule" Invoked to Violate Rights
by Ari Armstrong, November 5, 2005
Here's an easy way to predict when the "home rule" status of a Colorado city will be invoked. If a city ordinance violates individual rights, then it is a home-rule issue. If a city ordinance protects individual rights, then it is a state-control issue.
For example, if a Denver ordinance violates the rights of self-defense and contradicts rights-protecting language in the state constitution, then the ordinance, its advocates argue, is a matter of home rule. If, on the other hand, the citizens of Denver pass a local measure to protect the rights of adults to control their own bodies by using marijuana, then state law automatically trumps.
Or, as L. Neil Smith put the matter in his always-colorful style, "[W]hat the rusty, flaming, puddlejumping fuck happened to wonderful Home Rule in this instance? Does it only apply to minerals and not to vegetables?"
In 2003, the legislature passed a "preemption" bill that limited the ability of cities to violate rights of self-defense by, for example, arbitrarily banning some guns. The matter is still tied up in court. City officials argued that home rule trumps state law in such matters.
On Tuesday (November 1), Denver voters approved "Question 100," which legalized possession of small amounts of marijuana for adults 21 and older. A November 3 article in The Denver Post reviews, "The Denver city attorney's office prosecuted 1,565 people last year under state law, which calls for a fine of up to $100. The city prosecuted 36 adults last year for marijuana possession under a separate city ordinance prohibiting marijuana use. That ordinance has a maximum penalty of up to a $1,000 fine and up to a year in jail, though milder penalties are the norm, said Assistant City Attorney David Broadwell... Broadwell said court precedents allow cities to be more restrictive than state law but not less restrictive." In other words, Broadwell believes that city ordinances trump state law if and only if they restrict individual freedom.
And a November 3 story in the Rocky Mountain News quotes Denver District Attorney Mitch Morrissey: "It is still illegal to possess less than an ounce of marijuana anywhere in the state, and that includes Denver." The next day, the paper reported that "the state attorney general, Denver district attorney and city attorney have said the city cannot flout state law."
Denver's advocates of "home rule" were only too eager to preempt with state law the desires of voters in a third of Colorado counties who voted against Amendment 22. (The measure, which expanded Brady registration checks to private sales at gun shows, passed in the state-wide vote.)
Obviously, "home rule" is not the primary concern for either side. Those who want more political control over the lives of citizens argue for "home rule" when it expands that control, and they forget all about "home rule" when they can expand political power through state law. But I tend to do the same thing in reverse. Within Constitutional limits, I favor control at whatever level of government best protects individual rights. I want the federal government to protect individual rights by prohibiting interstate protectionism. I want the state government to protect the rights of Colorado citizens against abusive city officials. Yet, in the case of the marijuana vote, I want city officials and police to respect individual rights by following local, not state, rules.
There are two main differences between me and the other side. First, I actively defer to Constitutional provisions, and I believe that Constitutional language can be changed only with formal amendment. The other side tends to regard Constitutional language as fluid. Second, I explicitly state that my standard is individual rights, whereas the opposition usually invokes "home rule" arbitrarily, as a pretext, to disguise its core principles.