<html xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"> <head> <meta http-equiv="Content-Type" content="text/html; charset=utf-8"> <meta name="Generator" content="Microsoft Word 15 (filtered medium)"> <style></style> </head> <body lang="EN-US" link="#0563C1" vlink="#954F72"> <div class="WordSection1"> I have read the memorandum submitted yesterday on the volatile issue of charter amendments and how we should analyze the applicability of the Boulder Charter, the State Constitution and various State and local statutes to determine whether those amendments are to be regarded as in compliance with filing and signature requirements. However, having reviewed the legal analysis contained in that memorandum I must say that I find it incomplete and a bit misleading.  To me, it does not represent a fair presentation of the issues and appears to represent a  doubling down on the notion that our ability to regulate charter amendments is contained in the charter itself, and is not subject to any restrictions contained in the State Constitution or statutes. I believe that this notion is not well supported, and that the discussion of the issues is therefore incomplete.<o:p></o:p> <o:p> </o:p> The memorandum argues that the general statement in support of home rule principles in the state statute CRS 31 – 1-102 “appears to provide clear guidance from the General Assembly that a home rule  city can make its own rules.” This is true, but only to the extent that our discretion is not restricted by specific statute or provisions of the Constitution. Accordingly, this seems to be a thin – and the only – reed to support the entire argument. No further evidence is offered in support of this position. The other Boulder statutes cited in the discussion are only relevant if you assume the conclusion that Charter amendments are controlled by the Charter.<o:p></o:p> <o:p> </o:p> At the same time, a number of considerations that would argue to the contrary are not even addressed. Among those considerations are the following:<o:p></o:p> <o:p> </o:p> 1) Section 9 of Article XX of the Constitution states that “the registered electors of each city…are hereby vested with the power to adopt, amend and repeal a home rule charter”.  Section 9 then directs the general assembly to provide by statute procedures for the amendment of municipal home rule charters (which they do). It goes on to be quite specific with respect to what those requirements should be.  There is no language that supports the concept that home rule cities can opt out of these constitutional provisions simply by exercising their home rule authority and enacting contrary rules.<o:p></o:p> <o:p> </o:p> 2) State statute CRS 31-2-202 contains a legislative declaration that the policies and procedures it is about to discuss are to “implement section 9 of article XX of the state constitution”.  And CRS 31-2-210 then goes on to specify the that implementation, by setting out requirements to amend a home rule charter in great detail. There is no language to indicate that these requirements are optional if the home rule city chooses them to be so. These provisions are not discussed in the memorandum.<o:p></o:p> <o:p> </o:p> 3) The memorandum references Section 37 of the Boulder charter, which does indeed say that the people shall have the power to suggest charter amendments, initiate ordinances, etc.  Of course, they do; that is the essence of being a home rule city that solicits citizen participation. That has nothing to do with how those actions are to be enabled. The memorandum leaves out the rest of Section 37, which sets out the requirements for petitions to pass “a legislative ordinance, resolution, order or vote (all of these four terms being hereinafter included in the term “measure”)…”  Charter amendments are excluded from this definition, which means that all of the subsequent articles of the charter setting out the procedures for conducting these initiative petitions do not apply to charter amendments. Where then would such procedures for charter amendments be found if not in the State statutes? <o:p></o:p> <o:p> </o:p> 4) Finally, there is  Section 137 of the Charter, entitled “Amendments,” whose single sentence states the following: “This charter may be amended as provided in Article XX of the constitution of the State of Colorado.” What could be clearer? Is the argument being advanced that our home rule authority permits us to negate the provisions of our own charter, as well as State constitutional and statutory provisions? Section 137 is neither mentioned nor explained in the discussion of the arguments relating to the issue of which standards to apply. <o:p></o:p> <o:p> </o:p> The fact that the only discussion of the possible application of State requirements  on Boulder’s charter amendments is a reference to one indeterminate court case, with no discussion of any of the matters raised above  is greatly concerning to me. All of the issues raised above are potentially rebuttable, but this can only occur if they are actually mentioned and rebutted. The argument that our Charter provisions supersede specific and contrary provisions of the State Constitution and State ordinances may have substance, and the opposing argument that the State Constitution and ordinances should control may be in error, but I believe that this memorandum does not provide us with the guidance we need to conduct this discussion.  <o:p></o:p> <o:p> </o:p> </div> </body> </html>