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How far can governments go in opposing citizen-led initiatives? CML attorney says it’s best to stay out of it

DENVER —With all the ongoing efforts to get citizen-led initiatives on the 2020 ballot, the attorney who represents the Colorado Municipal League (CML) advises other municipal attorneys that, for the most part, it is best for both the lawyers and elected officials to stay out of it.

“I would urge them to refrain from saying or doing anything that would be perceived as discouraging them from exercising their First Amendment rights,” said David Broadwell.

In fact, the CML and Broadwell recently played host to free training to up-and-coming municipal attorneys about how far they can go in interfering with citizens’ input into how their governments are run or if they should stay out of it altogether.

CML hosted a “Coffee and Bagels with David Broadwell” session recently at its offices titled “Direct Democracy: Elections, initiatives, and petitions.” It was put on by the group Rising Municipal Attorneys.

Broadwell has also acted as the municipal attorney for the City and County of Denver for the past 20 years. Topics of the breakfast included:

  • Interacting with potential petitioners; dissuading them from pursuing a petition or trying to influence the contents/drafting of their petition. Is this proper?
  • Advising the city council on countermeasures to mitigate a petition effort, including the referral of competing measures to the same ballot.
  • Advising the city clerk on acceptance or rejection of petitions, including the option to reject measures that are not truly legislative in nature.
  • Speaking out on questionable legality of an initiated law prior to election.
  • Implementing and/or defending a law of questionable legality after it is adopted.
  • Laws governing the amendment or repeal of an initiated law after it is adopted.

The training came at a time when Golden’s city attorney says it could face a possible lawsuit over a citizen-led initiative if it makes its way onto the ballot and passes.

Marjorie Sloan

A group of residents in Golden are circulating a petition that would stop the development of about 27 acres of land known was Golden Overlook. Earlier this year, Golden City Council approved rezoning that added commercial and industrial zoning to the already residential designation.

The ability to put citizen-led initiatives on the ballot is a reserved right under the Colorado Constitution.  Article V, Section 1 states, among other things, that: “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.”

However, both the mayor and the city attorney may be taking their opposition too far.

Golden City Attorney David Williamson told The Denver Post that changing the zoning via citizen initiative so that it only allowed “open space, hiking and biking trails, park land, community gardens or solar facilities would amount to a ‘regulatory taking for which the city of Golden would be liable to the property owners for damages.’”

Williamson said that could amount to $2-5 million.

Williamson also comprised a memo to the council that has since been made public in support of a “decline to sign” effort.

Mayor Marjorie Sloan, in her official capacity as mayor and on her official mayoral Facebook page, is urging residents to “decline to sign,” and the City has an official page on its website that discourages the petition effort as well.

Broadwell told Complete Colorado that efforts such as being sanctioned by the City of Golden are not well-advised. Broadwell did not speak directly about Golden and Sloan’s effort, but he said attorneys and elected officials should not do anything that gives the impression they are trying to impede a citizen’s effort to exercise their right to petition government under the First Amendment, regardless of whether the legislation would be questionable in court.

“I started with an admonition about how important it is for the city attorney to refrain from saying or doing anything that might be interpreted as discouraging petitioners from exercising their constitutional right to initiate laws,” Broadwell said about his recent presentation, adding rather than fight the effort, city attorneys should schedule public meetings to discuss the gray areas. By doing so it puts everything on the record.

Castle Rock City Attorney, Bob Slentz also said he also operates under the theory that it’s best for city attorneys to stay out of citizen-initiated matters.

Slentz found himself in the same predicament last year when a group of Castle Rock residents successfully initiated a petition to make Castle Rock’s mayor an elected position. The initiative involved changing the city charter, but it contained errors in the wording that made the process muddied and confusing.

Slentz said despite pressure from others to help word the petition to make it cleaner and easier to implement, he stayed out of it. He said it’s important for attorneys to remember who they represent.

“My policy was consistent with the town manager,” Slentz said. “We would give guidance on the process and meeting time deadlines, but not on the substance of the petition. I am aware that many approach that differently. They feel it’s important to correct errors and other issues. But I don’t want our involvement to appear to be giving legal advice to constituents.”

Broadwell, in his capacity as CML general counsel, has a list of legal cases giving examples of most all possible outcomes for citizen initiatives and First Amendment issues that he urges attorneys to look to before getting involved.

In addition to the problems of dissuading citizen initiatives, the City of Golden could also be violating campaign finance laws by using city recourses to take a side in an issue. The webpage published by the city concerning the petition does not give both sides to the issue, as required by law.

“We are disappointed that the City continues to ignore and marginalize the residents of Golden Heights and Golden Hills,” said Marie Williams in part in a letter to the city.  Williams is the attorney representing the citizens behind the petition. “And now – when those same citizens are expressing major concerns about the proposed Golden Overlook development, and even going so far as to begin the initiative process – the City is maligning their motivation and intent.”

 

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