[BoulderCouncilHotline] Fw: Ballot Measures Discussion

[Young, Mary]

Dear Community,

Council received the following forwarded email from former Council Member Andrew Shoemaker. Andrew is a practicing Colorado Attorney.

Of note, the attachment to the attached memo, Report from the Campaign Finance and Elections Working Group to Boulder City Council dated April 17, 2018 is an important read.

Thank you.

We're all in this together...six feet apart.

In solidarity,

Mary Dolores Young
Boulder City Council
303-501-2439

[cid:594a85f5-5fa2-4940-8ea2-56d2315fe71a]

"All ethics ... rest upon a single premise: that the individual is a member of a community of interdependent parts..." - Aldo Leopold

________________________________
From: Andrew Shoemaker <ashoemaker at sgslitigation.com>
Sent: Tuesday, July 21, 2020 12:06 PM
To: Council <council at bouldercolorado.gov>
Subject: Ballot Measures Discussion

External Sender

Members of Council,



I am writing regarding the ballot measures discussion scheduled for this evening and having just read the Staff memorandum.  With all due respect to the City Attorney's office, the City Attorney continues to fail to address the compelling and legally clear reasons that state law applies to amendments to Boulder’s Charter.



(1) Section 37 of the Charter is clear that the Charter's signature and timing requirements apply to legislative ordinances but not to amendments to the Charter.  Charter amendments are included in the list in the first sentence, but Charter amendments are not included in the list in the second sentence.  Accordingly, rules of statutory construction dictate that Charter amendments are therefore excluded from the application of the second sentence. It is the second sentence that applies the signature and timing provisions from the Charter (“shall be acted upon as hereinafter provided”).

(2) When the elections working group presented the Charter changes in 2018, the Staff memo attached and endorsed the report of the elections working group as the basis for the changes. The language could not be clearer: "The [charter amendment] process is governed by state law and a time table set by the state.  The city has limited ability to change any aspect of how charter amendments go to the ballot. . . . We focused on the local processes (municipal initiative, referendum and recall), and did not try to add local laws to fill in any minor holes in the state's extensive rules for initiated charter amendments. To repeat, state law sets the required number of signatures, the petition format, and the timeline for such charter amendments.  Thus, there is very little local flexibility."  Apr. 14, 2018 Staff Memo at 16-17, attached (emphasis added).  The citizens voted on the 2018 Charter changes based one these representations that provide no room for the City Attorney's current view that the Charter governs the signature and timing requirements for Charter amendments.

(3) Additionally, Section 137 of the Charter provides: "This charter may be amended as provided in article XX of the constitution of the State of Colorado."  It does not say that it may be amended pursuant to the provisions in the Charter.



The City Attorney's failure to address this analysis -- instead focusing on a case out of Colorado Springs (see July 21, 2020 Staff Memo at 6-7) -- is puzzling and concerning. I and others have raised this issue with the City Attorney’s office (and the ballot proponents) on a number of occasions. The City Attorney’s office continues to bury its head in the sand on the language of both sentences of Section 37 of the Charter as well as the legislative history (i.e., the attached elections working group report).



Further, the chart prepared in response to Council member Young's question is superficial and does not scratch the surface and address whether any home rule city actually has attempted to supplant or replace state law rules with local rules on charter amendments. The Staff memo is telling in that it says that some jurisdictions "appear to reserve to the council the ability to supersede state law."  Put differently, the City Attorney's office is not aware of any home rule jurisdiction that has attempted to supersede state law on a home rule charter amendment.  But Boulder is suggesting that it can do just that.  Accordingly, the City Attorney’s current interpretation of its Charter is unprecedented.



With respect to the Staff's suggestion that it would be "fair" to place these proposed Charter amendments on the ballot simply because Staff made an error in its guidelines, that analysis also is flawed.  These proposed Charter amendments have not, and cannot, meet either legal standard -- that set by the State or that set in the Charter.  The City's guidance was flawed in that it mixed and matched different guidelines from the State and Charter law.  A court would disallow a ballot measure for such cherry picking.  It is no more unfair for the City Attorney and Clerk to correct the error now than it would be for the City Attorney and Clerk to certify the measure and allow it to be invalidated by a court.  Indeed, were the Council to put these proposed Charter amendments on the ballot for the reasons set forth in the Staff memo, that is no different than the City Council mixing and matching to change the signature and timing requirements (which it does not have the jurisdiction to do). The Staff memo recommendation is nothing more than an attempt to insulate the City Attorney’s office ignoring the signature and timing requirements by using Council authority under the guise of “fairness.”



Further, the advocates for each of these proposed Charter amendments were aware of the legal risks and were advised to seek legal advice by the City and by various citizens. They nonetheless proceeded forward assuming the risks.



What would be "fair" is to address occupancy and the housing problems on the Hill legislatively.  Council has ignored this issue for too long, and kudos to the Bedrooms proponents for putting the Council in a position where it is forced to consider addressing an issue that has been ignored by the City for too long.



Finally, I have written elsewhere about the unintended consequences of the Bedrooms proposal and how the matter should be handled legislatively.  I will not repeat that here.  However, I saw that former Council member Burton wrote an email to Council suggesting that language that she and I worked on was suitable for creating a working group to be conducted in tandem with the Bedrooms amendment.  That is incorrect.  She and I worked on draft language for an alternative to the Bedrooms proposal. While she apparently changed her position at the last minute, it is apparent from the proposed language that it assumes a legislative solution to be derived from the working group.  A working group in tandem with the Bedrooms amendment is nothing more than window dressing, as any working group would be severely hamstrung by the Charter amendment.


Thank you for your service, and I look forward to watching the discussion tonight.


Andrew R. Shoemaker
Shoemaker Ghiselli + Schwartz LLC
1811 Pearl Street
Boulder, Colorado   80302
(303) 530-3452 (office)
(303) 530-4071 (fax)
www.sgslitigation.com<http://www.sgslitigation.com>
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