Letters to the Editor

“Neighborhoods’ Right To Vote” is an exercise of the citizens’ powers as enshrined in the Colorado Constitution

“Neighborhoods’ Right To Vote” is an exercise of the citizens’ powers as enshrined in the Colorado Constitution

In a recent Camera guest opinion (Sunday, 8/30/15) Dave Abelson selectively quoted the language from one sentence in the Colorado constitution to argue that the “Neighborhoods’ Right To Vote” initiative likely violates the constitution. But the very next sentence in that constitutional section (which Abelson failed to reference) points out the fallacy of his argument, and shows that, in fact, the constitution supports the rights of citizens to set the rules for referendum processes, such as those allowed by this initiative.

Also, the Boulder City Attorneys Office has reviewed this initiative at least twice, once before it was circulated, and again just last week. And the CAO found no such legal barriers. Here’s a link to the CAO implementation memo. https://www-static.bouldercolorado.gov/docs/20150901_5B_Supplimental_Right_to_Vote-1-201508281808.pdf

Here’s the full text of Article V, Section 1(9), the one that Abelson referenced. Note the underlined part:

 “The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality as to all local, special, and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws; except that cities, towns, and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten percent of the registered electors may be required to order the referendum, nor more than fifteen percent to propose any measure by the initiative in any city, town, or municipality.”

What the Colorado constitution describes is exactly what would happen if the citizens of Boulder choose to pass the Neighborhood’s Right to Vote charter amendment in the upcoming city election in November.

The citizens would be “provid(ing) for the manner of exercising the…referendum powers as to their municipal legislation” by granting referendum power to a subset of their citizens (a neighborhood) to refer certain council-passed land use regulation changes (“their municipal legislation”) to a vote of that neighborhood, with that vote only applying to the implementation of such changes in that neighborhood.

It is generally agreed that local land use regulations are one of the fundamental forms of “municipal legislation”. The state constitution, in Article XX, Sec. 9 and the linked statute CRS 31-2-210, endorses the citizen initiative process as a legitimate way to set or amend a city’s charter rules for how the city operates, with one of those rules “provid(ing)” for the exercise of referendum powers on municipal legislation.” And the Boulder city charter in Section 137 specifically states that the state constitution defines how the City charter may be amended.

*Some Case Law  off of Lexis/Nexus’s version of the Section on initiatives that Dave Abelson referenced…

ALL POWER HAS BEEN RESERVED BY PEOPLE THROUGH INITIATIVE AND REFERENDUM. In re Legislative Reapportionment, 150 Colo. 380, 374 P.2d 66 (1962).

Under the Colorado Constitution, all political power is vested in the people and derives from them, and an aspect of that power is the initiative, which is the power reserved by the people to themselves to propose laws by petition and to enact or reject them at the polls independent of the legislative assembly. Colo. Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972).

PEOPLE’S RIGHT TO LEGISLATE RESERVED. By this section, the people have reserved for themselves the right to legislate. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

POWER OF INITIATIVE IS A FUNDAMENTAL RIGHT. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

PURPOSE OF INITIATIVE AND REFERENDUM embodied in the constitution is to expeditiously permit the free exercise of legislative powers by the people, and the procedural statutes enacted in connection therewith were adopted to facilitate the execution of the law. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938).

The power to call referendum and initiative elections is a direct check on the exercise or nonexercise of legislative power by elected officials. Margolis v. District Court, 638 P.2d 297 (Colo. 1981).

PROVISIONS FOR INITIATIVE AND REFERENDUM ENTITLED TO LIBERAL CONSTRUCTION. It has generally been held by the courts of all jurisdictions that a constitutional provision for the initiative and referendum, and statutes enacted in connection therewith, should be liberally construed. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938); Baker v. Bosworth, 122 Colo. 356, 222 P.2d 416 (1950).

Initiative and referendum are fundamental rights of a republican form of government which the people have reserved unto themselves and must be liberally construed in favor of the right of the people to exercise them. Conversely, limitations on the power of referendum must be strictly construed. Margolis v. District Court, 638 P.2d 297 (Colo. 1981).

RIGHT OF INITIATIVE PERTAINS TO ANY MEASURE, WHETHER CONSTITUTIONAL OR LEGISLATIVE, and, in the case of municipalities, it encompasses legislation of every character. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

This section, as well as the statutes which implement it, must be liberally construed so as not to unduly limit or curtail the exercise of the initiative and referendum rights constitutionally reserved to the people. Colo. Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972); Billings v. Buchanan, 192 Colo. 32, 555 P.2d 176 (1976).