Nearly three decades after Colorado voters enacted term limits for local officeholders, the state Supreme Court is debating whether the law is so strict as to prevent Thornton’s first-term mayor from occupying that position.
The justices’ interpretation could have repercussions statewide, affecting municipalities whose mayor and city council makeup mirrors that of Thornton. The Colorado Municipal League, which represents 270 of the state’s 272 cities and towns, warned that a Supreme Court decision endorsing the shortest possible time a person can spend in office would harm local governments, especially in less-populated jurisdictions that have a smaller candidate pool.
A narrow view of term limits, argued CML in support of Thornton, “will undermine local voters’ rights to choose their representatives, risk municipalities’ ability to field sufficient candidates to hold elections, create litigious local campaigns, and cause the loss of needed experienced officials.”
Thornton’s city charter establishes a city council of nine members, “one of whom shall serve as Mayor.” At the same time, a provision of the state constitution, referred to in the litigation as Section 11, prohibits local elected officials from serving more than two consecutive terms “in office.”
The question before the Supreme Court is whether the office of mayor is distinct from the office of council member. If the answer is no, any council member who serves two consecutive terms in Thornton would be ineligible to immediately become mayor and vice versa.
The current legal controversy arose after Jan Kulmann won her first term as mayor in 2019. Previously, she had been elected to two terms as a ward council member, resigning midway through her second term to take office as mayor.
Cherish Salazar, a resident of Thornton, filed a lawsuit against Kulmann and the city seeking only a declaration that Section 11 of the constitution prohibited Kulmann from serving what Salazar believed to be a third term on the city council — two as a ward council member plus one as mayor. Her view was that Thornton’s mayor and council members were not different enough to be considered separate offices.
During oral arguments before the Supreme Court on Tuesday, the justices attempted to understand the structure of Thornton’s local government. Some members were wary that the judicial branch was called upon to define the boundaries of the city’s legislative and executive offices.
“Textually, why wouldn’t we just accept at face value that they’re different?” asked Justice Richard L. Gabriel. “My concern is getting into a situation where courts are being asked to get in the weeds and decide, ‘What does a mayor do day-to-day? Is it really different than a council person?'”
Justice Carlos A. Samour Jr. wondered if the Thornton mayor, as a member of the nine-person city council, was analogous to the chief justice being a member of — but not a separate office from — the seven-member Supreme Court.
“This is not a perfect comparison,” Samour said. “The chief justice has a different salary than the rest of the justices —”
“He does?” interjected Gabriel, prompting laughter.
In October 2021, a judge in Adams County sided partly with Kulmann and partly with Salazar in weighing how Section 11’s term limits affected the mayor and council member offices in Thornton. District Court Judge Teri L. Vasquez conceded Section 11, which voters enacted in 1994, does not define what an “office” is. But the purpose of the amendment was to broaden opportunities for public service and deter “careerism” in elected office.
Vasquez then analyzed the differences between the mayor and council member positions in Thornton. Although Thornton’s mayor presides over council meetings and has certain emergency executive powers, the mayor cannot veto legislation nor has special budgetary or policy authority.
In weighing all of the evidence, Vasquez determined Thornton’s mayor and council members belonged to the same office — a member of the city council. She believed it would undermine the purposes of Section 11 if a ward council member were allowed to serve for two terms, then serve as mayor for two terms, then return to the ward seat in a perpetual cycle of public service.
At the same time, Vasquez found Kulmann’s partial second term as a council member did not count toward the constitutional limit. Therefore, Kulmann would be allowed to finish her first term as mayor.
The parties appealed Vasquez’s ruling and the Supreme Court agreed to hear the case directly. Salazar’s attorney contended the trial judge had correctly found the position of mayor was a “superficial” role that “doesn’t really do anything other than ceremonial” duties.
Kulmann and the city, on the other hand, advocated for a three-part test to determine whether the mayor and council member positions were the same. The factors include how the charter describes the positions, whether the mayor is elected separately and how the powers of the mayor differ from those of council members.
Josh A. Marks, the attorney for Thornton, believed the mayor’s separate election by the city at large was “crucial” in distinguishing the offices.
“Doesn’t it seem like hinging this on the governing body, rather than the specific position, is more in keeping with the overarching objective of Section 11?” countered Justice William W. Hood III. “It seems that the problem with your analysis is that the mayor is always a council member, and so is always part of that same governing body.”
Similarly, Samour asked directly whether Kulmann, as mayor, is a “council member.”
“She was a member of the city council,” Marks responded.
“So she was a council member,” Samour clarified.
Marks insisted a distinction exists between the two concepts, explaining that Kulmann serves on the city council, but does not occupy the office of a council member.
CML, the municipal organization, wrote to the Supreme Court to argue cities benefit from having mayors who have previously been council members, gaining knowledge about government operations and policy issues from their prior service. It believed the fact Kulmann was elected to a separate mayoral position was enough to distinguish her office from that of a council member.
“By itself, the existence a separately elected mayoral office shows that voters did not intend to treat that office the same as other council or board offices for term limits purposes,” CML wrote.
The term limits amendment of 1994 came four years after voters imposed similar restrictions on consecutive service for statewide officeholders. Local voters are permitted to alter the two-term limit for municipal officeholders if they wish.
