dissenting.
168 While I view our prior attempts to distinguish administrative from legislative action as little more than a license to judicially nullify popularly initiated measures at will, I am presently more concerned that the majority's elaborate justification in this case risks extending that entitlement to the oversight of representative bodies as well. I therefore respectfully dissent and write separately to identify my concerns.
T69 In the last half-century or so, this court has come to recognize a loosely-de*512fined, concededly ad hoc, distinction between executive (or administrative) actions and legislative actions, primarily for the purpose of limiting the initiative power reserved to the voters by article V, section 1 of the state constitution. See City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977); City of Louisville v. Dist. Court, 190 Colo. 33, 543 P.2d 67 (1975). In a small handful of decisions (none commanding more than four votes), this court has struck down popularly initiated measures as administrating rather than legislating, largely on the basis of a highly elusive distinction between acts constituting a declaration of public policy themselves and acts merely carrying out existing legislative policies. City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo.1987); Witcher v. Canon City, 716 P.2d 445 (Colo.1986); Zwerdlinger, 194 Colo. 192, 571 P.2d 1074; cf. Margolis v. Dist. Court, 638 P.2d 297 (Colo.1981) (even "small" zonings and rezon-ings held legislative in nature). While it in no way makes the classification of such measures any more rational or predictable, we have in the past also observed that an amendment to an original legislative act must also be considered legislative. Witcher, 716 P.2d at 450; Margolis, 638 P.2d at 304. By subtly expanding this proposition to include its inverse - that an amendment to other-than-legislative acts cannot be legislative - the court of appeals, and now the majority, shifts the focus of the inquiry from the nature of the popular initiative itself to the nature of municipal actions likely to be affected by it.
T70 Although the distinction between administrative and legislative acts may have originally been formulated simply to ensure that popular democracy not interfere with the day-to-day administrative functions of municipalities, like the "purchase of city vehicles, establishment of parking fees, and the proper maintenance of city-owned lands and buildings," see Witcher, 716 P.2d at 449, the discretionary power of the judiciary under this doctrine, as this case amply demonstrates, is by no means so limited. In fact, the standards guiding judicial discretion in this context, such as they are, have become so elastic as to make any point-by-point refutation of the majority's analysis virtually pointless. I consider it more worth noting that both the majority and intermediate appellate court rationales finding each of these proposed initiatives to be other than "a declaration of public policy of general applicability," Blackwell, 731 P.2d at 1254, rest primarily on the assumption that they involve matters beyond the ken of the voting public and the fact that they would disrupt a number of contractual and administrative decisions already negotiated by the city with other governments. While these considerations may evidence the inconvenience and perhaps lack of wisdom in fundamentally changing courses at this late date, and might even involve a constitutionally prohibited abrogation of contract, they most certainly do not render the initiatives executive rather than legislative. To even suggest that a constitutionally created, legislative body like the General Assembly or the United States Congress would exceed its authority by enacting laws to overturn administrative actions of the executive branch or curtail the executive's administrative authority in certain areas would be unthinkable. See I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (requiring Congress to abide by its delegation of administrative authority to the Attorney General "until that delegation is legislatively altered or revoked").
T71 Of equal concern to me, however, is the majority's explanation, by reference to the provisions of the Aspen Home Rule Charter, that the proposed initiatives cannot be legislative in nature because the City Council's voter-approved submissions affected by them were not themselves legislative enactments. In this regard, I believe the majority breaks new ground and does so in a way that representative bodies with the authority to legislate, like the Aspen City Council, may come to regret. In addition to the fact that I disagree with the majority's construction of the pertinent Charter provisions, the clear import of its rationale is that the same broad judicial discretion that applies to popular initiatives also governs the question whether an elected representative body has in fact administrated when it was obliged to legislate. While municipal governing bodies *513often retain greater flexibility than constitutional legislatures to act both executively and legislatively, even they will presumably remain vulnerable to judicial discretion concerning their enabling authority and choice of procedures.
172 With regard to Aspen's Home Rule Charter in particular, the majority finds that despite being required to obtain voter approval to change the use of open space, the ultimate decision to make such a change, in the absence of an express specification that open space can be changed only by ordinance, cannot be considered legislative - that is, it cannot be considered the "declaration of public policy of general - applicability." Blackwell, 731 P.2d at 1254. Whatever may be the proper interpretation of the Charter (which on its face creates a highly differentiated form of government, allocating the administration functions of the city to a city manager and various departments created by ordinance), I do not believe its designation of actions the city council may take only by ordinance can limit the meaning of "legislative" for constitutional purposes. Whether or not the Charter specifies that certain actions must be taken, if at all, only by ordinance, it would be difficult, in light of our prior pronouncements, to equate actions of such great policy import as to completely exceed the power of city government without direct voter approval, with the kind of day-to-day managerial functions thus far held to fall outside the constitutional reservation of popular initiative.
T 73 Most importantly, however, the majority's assessment of the validity of popular initiatives based on its classification of those municipal actions likely to be affected by them implies judicial discretion to similarly categorize, and thereby limit, the actions of legislative bodies generally, especially those bodies lacking the flexibility to execute. The Supreme Court has struck down congressional action complying with its constitutional procedural requirements for legislative action as infringing on the executive's power to administrate only with regard to the usurpation of the power of appointment and retention over administrative officers. - See Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). And even this limited distinction between the respective roles of the executive and legislative branches has not been without controversy. See id. at 786, 106 S.Ct. 8181 (Stevens, J., concurring in judgment) (disagreeing with majority's "labeling of the functions assigned to the Comptroller General as 'executive powers' " and instead striking down congressional action only for failing to following legislative procedures); see also id. at 759, 106 S.Ct. 3181 (White, J., dissenting); id. at 776, 106 S.Ct. 3181 (Blackmun, dissenting); see generally Thomas O. Sargentich, The Contemporary Debate About Legislative-Executive Separation of Powers, 72 Cornell L.Rev. 480 (1987). Because I believe there to be tremendous overlap in what is appropriately designated administrative and what is appropriately designated legislative, with the former largely defined by the discretion delegated to the executive by the latter; and because I also consider it dangerous for the continued viability of the principle of separation of powers to allocate to the judiciary such unfettered discretion to choose between the two, I would exclude from the legislative function, at most, only the clearest and most basic managerial tasks.
T74 Because I disagree with both the majority's analysis and ultimate conclusion that the popular initiatives at issue here do not involve any public policy of general applicability and therefore are strictly administrative in nature, I respectfully dissent.
I am authorized to state that JUSTICE EID joins in this dissent.