Bajda v. Stephenson

25CA0041 Bajda v Stephenson 08-28-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0041
Delta County District Court No. 24CV4
Honorable Mary E. Deganhart, Judge

Ewelina Bajda, Jacob Dahlman, and James McCain Jr.,

Plaintiffs-Appellants,

v.

Teri Stephenson,

Defendant-Appellee.

JUDGMENT AFFIRMED
AND ORDER REVERSED

Division III
Opinion by JUDGE SCHOCK
Dunn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 28, 2025

Ewelina Bajda, Pro Se

Jacob Dahlman, Pro Se

James McCain Jr., Pro Se

Hall & Evans, L.L.C., Matthew J. Hegarty, Denver, Colorado, for Defendant-
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Plaintiffs, Ewelina Bajda, Jacob Dahlman, and James McCain

Jr., appeal the dismissal of their complaint against defendant, Teri

Stephenson, in her official capacity as Delta County Clerk, and the

order awarding attorney fees to Stephenson. We affirm the

judgment of dismissal but reverse the order awarding attorney fees.

I. Background

¶2 In 2024, the Delta County Board of County Commissioners

adopted a resolution updating the county’s land use code and

rezoning all property zoned as urban growth areas to residential.

¶3 Days after the resolution was adopted, plaintiffs filed a

proposed referendum petition concerning the resolution.

Stephenson rejected the petition, explaining that “[m]odification of a

land use code adopted by the Board of County Commissioners is

not an allowable topic for citizen initiative” under Dellinger v. Board

of County Commissioners, 20 P.3d 1234 (Colo. App. 2000).

¶4 Plaintiffs submitted an amended petition a week later, which

clarified that its purpose was to “protest the enactment” of the

resolution. Again, Stephenson rejected the petition under Dellinger.

She elaborated that the constitutional right to referendum was

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reserved for “state legislative decisions” and “local, special and

municipal legislation,” and the challenged resolution was neither.

¶5 Plaintiffs then submitted another petition, titled a “citizen

referendum petition to repeal [the resolution],” which was signed by

1,406 county electors. This time, the Delta County Attorney

responded on Stephenson’s behalf, again citing Dellinger for the

proposition that “there is no constitutional right of initiative for

electors at the county level.” 20 P.3d at 1238. The petition was

therefore rejected as “legally insufficient” and “invalid.”

¶6 Plaintiffs then filed a complaint against Stephenson, alleging

that she had improperly rejected their petition and seeking a court

order requiring her to accept it. Stephenson moved to dismiss the

complaint for lack of standing and failure to state a claim. As in

her prelitigation letters, Stephenson relied largely on Dellinger to

argue that county electors do not have a right of referendum.

¶7 The district court agreed and dismissed the complaint for

failure to state a claim. The court concluded that, under Dellinger,

“there is no constitutional right of initiative to modify county

ordinances,” and neither of the statutory exceptions to that rule —

county-wide sales tax ordinances and ordinances in non-home-rule

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counties — applied. Thus, plaintiffs had “no legal authority to

repeal or modify the resolution at issue through a citizen petition.”

¶8 The court also awarded Stephenson her reasonable attorney

fees and costs — later determined to be $8,974.50 — under section

13-17-102, C.R.S. 2025, on the ground that plaintiffs’ claim was

frivolous. It reasoned that plaintiffs were on notice before filing suit

that Dellinger was “fatal to their claim, but they filed suit anyway.”

II. Dismissal

¶9 Plaintiffs contend that the district court erred by dismissing

their complaint because, as county electors, they have a right to

seek a referendum against county zoning legislation. We disagree.

A. Standard of Review

¶ 10 We review de novo an order dismissing a complaint under

C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be

granted. Norton v. Rocky Mountain Planned Parenthood, Inc., 2018

CO 3, ¶ 7. In doing so, we accept the factual allegations in the

complaint as true, viewing them in the light most favorable to the

plaintiff, to determine whether the complaint states a plausible

claim for relief. Id.; Warne v. Hall, 2016 CO 50, ¶ 2. We will affirm

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a C.R.C.P. 12(b)(5) dismissal “when the plaintiff’s factual allegations

do not, as a matter of law, support the claim for relief.” Norton, ¶ 7.

B. Dellinger

¶ 11 We agree with the district court that Dellinger’s rationale for

holding that county electors have no constitutional right of initiative

precludes plaintiffs from asserting a right of referendum. See

People v. Frye, 2014 COA 141, ¶ 12 (“[A]lthough we ‘are not

obligated to follow the precedent established by another division,’

we ‘give such decisions considerable deference.’” (citation omitted)).

¶ 12 In Dellinger, the plaintiffs were county electors who sought to

place a citizen initiative on the county ballot but were denied by the

board of county commissioners. 20 P.3d at 1235. The issue on

appeal was “whether the right of initiative set forth in Colo. Const.

art. V, § 1, is applicable to, and exercisable by, the electors of

unincorporated, non-home-rule counties in Colorado.” Id.1

1 Delta County is not a home-rule county. See Legis. Council Staff,
Colorado Local Government Handbook, Research Pub. No. 795, at 12
(2023). Home-rule counties are unique in that their charters must
“contain procedures for the initiative and referendum of measures.”
§ 30-11-508, C.R.S. 2025; see also Dellinger v. Bd. of Cnty.
Comm’rs, 20 P.3d 1234, 1237 (Colo. App. 2000).

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¶ 13 The division held that it was not. See id. at 1236. It reasoned

that Colorado Constitution, article V, section 1, reserves the power

of initiative to the people on a statewide basis, and subsection (9) of

that section extends that reservation to “the registered electors of

every city, town, and municipality as to all local, special, and

municipal legislation.” Dellinger, 20 P.3d at 1236 (quoting Colo.

Const., art. V, § 1(9)). But because these constitutional provisions

do not refer to counties, they do not confer “a right on the part of

electors to initiatives on a county-wide basis.” Id. at 1236-37.

¶ 14 We are persuaded by Dellinger and conclude that its reasoning

applies to initiatives and referendums alike. Indeed, the supreme

court has similarly observed that it “has not recognized any

constitutional initiative powers reserved to the people over

countywide legislation.” Bd. of Cnty. Comm’rs v. Cnty. Rd. Users

Ass’n, 11 P.3d 432, 436 (Colo. 2000) (CRUA). Although CRUA

addressed a specific statutory right of initiative — for a countywide

sales tax — it distinguished such a right from the “initiatives and

referenda founded in the general, constitutional reservation of the

right to initiate legislation contained in article V, section 1 of the

Colorado Constitution.” Id. at 439. And in the twenty-five years

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since Dellinger and CRUA, no law has established a right of

initiative or referendum as to countywide legislation generally.

¶ 15 Thus, plaintiffs have no constitutional right to initiate a

referendum regarding the county resolution. Dellinger, 20 P.3d at

1237-38. Nor have they pointed to any statutory right to do so.

The district court therefore properly dismissed their complaint.2

C. Plaintiffs’ Arguments Against Dellinger

¶ 16 Plaintiffs mount several attacks on Dellinger, attempting both

to distinguish and discredit it. We are not persuaded.

¶ 17 Plaintiffs first contend that Dellinger is distinguishable

because it concerned a citizen initiative — to enact a law — while

theirs was a petition for referendum — to repeal a law. But that is

a distinction without a difference. Both the power of initiative and

2 Stephenson frames this issue as one of standing, arguing that

because plaintiffs have no right of referendum, they have not
suffered an injury to a “legally protected interest.” Ainscough v.
Owens, 90 P.3d 851, 855 (Colo. 2004). Given the overlap between
Stephenson’s standing argument and her argument on the merits,
we do not separately analyze the issue under the standing rubric.
See Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo. 1985)
(“A decision that a plaintiff lacks standing because the claimed
injury does not infringe any legally protected right of the plaintiff
may be viewed as equivalent to a holding that the plaintiff has failed
to state a claim upon which relief may be granted.”).

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the power of referendum derive from the same constitutional

provision, Colo. Const. art. V, § 1, which does not reserve either

power to county electors on a countywide basis. See Dellinger, 20

P.3d at 1237 (“[T]he rights of initiative and referendum are not

generally reserved to the electors as to county governments.”

(emphasis added)). Plaintiffs do not offer any persuasive basis for

treating these two types of citizen-initiated legislation differently.

To the contrary, the analysis in Dellinger applies equally to both.

¶ 18 Plaintiffs next try to squeeze their referendum petition into the

constitutional right of referendum for “city, town, and municipality”

electors as to “local, special, and municipal legislation” by arguing

that when a county enacts zoning legislation, it is functioning as a

municipality. Colo. Const. art. V, § 1(9); cf. City of Durango v.

Durango Transp., Inc., 807 P.2d 1152, 1156 (Colo. 1991) (holding, in

the context of a different constitutional provision, that “the term

‘municipal’ is to be determined by reference to the particular

function to be performed”). But the functional test plaintiffs draw

on arose in the context of a constitutional provision that applies to

the performance of “any municipal function.” Colo. Const. art. V,

§ 35; see City of Durango, 807 P.2d at 1158. In contrast, the term

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“municipality” in the provision at issue in this case “does not

include counties.” CRUA, 11 P.3d at 436. As Dellinger noted, while

there is “a certain ring of logic” to treating municipalities and

counties similarly when counties exercise legislative functions, that

is not what the constitutional provision says. 20 P.3d at 1237.

¶ 19 For the same reasons, plaintiffs’ reliance on sections

29-20-104(1) and 30-11-103.5, C.R.S. 2025, is misplaced. Section

29-20-104(1) provides that the power granted to counties to

regulate the use of land “does not limit any power or authority

presently exercised or previously granted.” (Emphasis added.)

Section 30-11-103.5 provides that “[t]he procedures for placing an

issue or question on the ballot by a petition of the electors of a

county that is pursuant to statute or the state constitution” shall

follow the procedures for municipal initiatives. (Emphasis added.)

Neither statute grants county electors a right of referendum that

does not otherwise exist by statute or constitution.

¶ 20 Similarly, Colorado Constitution, article V, section 1(10) —

which provides that section 1 is “self-executing” — means only that

no further legislative action is required for the rights reserved by

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that section to take effect. See Developmental Pathways v. Ritter,

178 P.3d 524, 533 (Colo. 2008). It does not create any such rights.

¶ 21 We also reject plaintiffs’ argument that Stephenson, as county

clerk, lacked the authority to reject the referendum petition without

referring it to the Board of County Commissioners. Although a

clerk may not preemptively reject a citizen initiative as substantively

invalid, see City of Rocky Ford v. Brown, 293 P.2d 974, 976 (Colo.

1956), the county may review a proposed initiative for compliance

with procedural requirements before presenting it to the electorate,

see CRUA, 11 P.3d at 436, 438. And to the extent plaintiffs rely on

the procedures for municipal referendums, it is the clerk who

makes those initial decisions.3 § 31-11-118(1), C.R.S. 2025. In

particular, the clerk may reject a petition on the ground that it

“does not propose municipal legislation pursuant to section 1(9) of

article V of the state constitution.” § 31-11-106(1), C.R.S. 2025.

3 Somewhat inconsistently, plaintiffs assert that Stephenson

improperly delegated her authority under section 31-11-118, C.R.S.
2025, by authorizing the county attorney to advise plaintiffs that
their petition was rejected. But the county attorney’s letter makes
clear that it was written on behalf of the county clerk. Plaintiffs
point to no authority that would preclude the county attorney from
representing the county clerk with respect to her official functions.

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¶ 22 Finally, we decline to address plaintiffs’ equal protection and

due process arguments, as well as their corresponding request for

damages under 42 U.S.C. § 1983, because plaintiffs did not raise

these arguments in the district court. See Melat, Pressman &

Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18 (noting

that unpreserved issues generally will not be addressed for the first

time on appeal). We note, however, that courts have rejected

similar arguments. See Dellinger, 20 P.3d at 1238 (holding that the

constitutional right of initiative does not implicate a liberty interest

under the Due Process Clause); Save Palisade FruitLands v. Todd,

279 F.3d 1204, 1214 (10th Cir. 2002) (holding that the Equal

Protection Clause does not “command Colorado to grant the power

of initiative to the electors of statutory counties simply because it

has granted that power to the electors of home rule counties”).

III. Attorney Fee Order

¶ 23 Plaintiffs also challenge the district court’s award of attorney

fees to Stephenson under section 13-17-102, on the ground that

their claim was frivolous. We agree with plaintiffs that the district

court abused its discretion by awarding Stephenson attorney fees.

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A. Applicable Law and Standard of Review

¶ 24 A court may award reasonable attorney fees against a party

that brought an action that “lacked substantial justification,”

meaning, as relevant here, that it was “substantially frivolous.”

§ 13-17-102(4); § 13-17-101.5(1), C.R.S. 2025. A claim is frivolous

if the party “can present no rational argument based on the

evidence or law” to support it. Stepanek v. Delta County, 940 P.2d

364, 369 (Colo. 1997). But attorney fees may not be assessed

against a pro se party unless the party “clearly knew or reasonably

should have known that the party’s action . . . or any part of the

action . . . was substantially frivolous.” § 13-17-102(6).

¶ 25 We review an award of attorney fees under section 13-17-102

for an abuse of discretion. In re Estate of Shimizu, 2016 COA 163,

¶ 15. A court abuses its discretion when “its decision rests on a

misunderstanding or misapplication of the law or is manifestly

arbitrary, unreasonable, or unfair.” Id. (citation omitted).

B. Analysis

¶ 26 The district court concluded that plaintiffs’ claims were

frivolous because “Dellinger is binding law and expressly holds that

there is no constitutional right of initiative at the county level.” But

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plaintiffs’ claims did not involve the “constitutional right of

initiative.” They involved the related but separately enumerated

right of referendum. And plaintiffs made a rational, if unsuccessful,

attempt to distinguish between the two. Plaintiffs also asserted that

county zoning decisions fall outside the scope of Dellinger based on

the municipal function test — another argument that, though

unsuccessful, “has a certain ring of logic.” 20 P.3d at 1237.

¶ 27 The district court also determined that plaintiffs knew or

should have known that their claim was frivolous because

Stephenson and the county attorney cited Dellinger in each of the

three letters rejecting plaintiffs’ referendum petitions. But again,

none of those letters addressed the arguable distinction between

initiatives and referendums. And even if they had, plaintiffs were

entitled to “attempt to advance a plausible theory and argument for

the adoption of [a] new legal principle” drawing that distinction.

Sullivan v. Lutz, 827 P.2d 626, 628 (Colo. App. 1992); see also § 13-

17-102(7) (providing that attorney fees shall not be awarded for a

“good faith attempt to establish a new theory of law in Colorado”).

¶ 28 Thus, plaintiffs did not simply ignore Dellinger. Instead, they

acknowledged it and sought to distinguish it. That effort was

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unsuccessful, and plaintiffs’ claims failed. But we cannot say that

plaintiffs — particularly as pro se parties — offered “no rational

argument” to support their claims, Stepanek, 940 P.2d at 369,

much less that they “clearly knew or reasonably should have

known” their action was “substantially frivolous,” § 13-17-102(6).

¶ 29 Under these circumstances, we conclude that the district

court abused its discretion by awarding Stephenson attorney fees

under section 13-17-102. We therefore reverse the award of fees.4

IV. Judicial Bias

¶ 30 Plaintiffs assert for the first time on appeal that the district

court judge should have recused herself from the case because she

“previously served as lead counsel” in CRUA, 11 P.3d 432 —

another case addressing county electors’ right of initiative.

¶ 31 Because plaintiffs did not move to disqualify the judge in the

district court, they must show that the judge was actually biased

against them. See Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 52.

Actual bias “focuses on the judge’s subjective motivations” and

4 Plaintiffs do not appeal the award of costs, which appears to total

eighty-seven dollars. See C.R.C.P. 54(d) (“[R]easonable costs shall
be allowed as of course to the prevailing party . . . .”).

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exists when, “in all probability, a judge will be unable to deal fairly

with a party.” People in Interest of A.P., 2022 CO 24, ¶ 28. The

record must “clearly demonstrate” that “the judge had a substantial

bent of mind against [the party].” Id. at ¶ 30 (citation omitted).

¶ 32 Plaintiffs have not made this showing. The judge’s

participation as counsel twenty-five years ago in an unrelated case

addressing a similar legal issue does not, without more, show a

“substantial bent of mind” against plaintiffs. Id. (citation omitted).

And other than that, plaintiffs point to nothing more than the

rulings against them. Absent “an attitude of hostility or ill will

toward a party, a ruling by a judge on a legal issue is insufficient to

show [actual] bias.” Bocian, ¶ 57; see also A.P., ¶ 32 (“[A]dverse

legal rulings by a judge are unlikely to provide grounds for a bias

claim, as they are proper grounds for appeal, not for recusal.”).

V. Appellate Attorney Fees

¶ 33 Stephenson requests an award of her appellate attorney fees

under C.A.R. 38(b) and section 13-17-102(4), again on the ground

that plaintiffs’ arguments lack substantial justification.

¶ 34 We deny that request. For the same reasons we have reversed

the district court’s award of attorney fees, we cannot conclude that

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plaintiffs’ arguments on appeal lacked substantial justification or

that plaintiffs clearly knew or reasonably should have known their

appeal was substantially frivolous. §§ 13-17-102(4), (6), -101.5(1).

VI. Disposition

¶ 35 The judgment dismissing plaintiffs’ complaint is affirmed. The

order awarding attorney fees to Stephenson is reversed.

JUDGE DUNN and JUDGE TAUBMAN concur.

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