fat CML | coLoRapo MUNICIPAL LEAGUE 44 Sheuman St. Denver, INITIATIVE BASICS FOR THE MUNICIPAL LAW PRACTITIONER David W. Broadwell CML General Counsel December 10, 2019 Understanding the initiative process as a fundamental constitutional right under both the Colorado Constitution and the irst Amendment ‘Two of the most important First Amendment cases on the ini emerged from Colorado Meyer v. Grant, 108 S. Ct. 1886 (1988) (striking down prohibition on paid petition circulators); Buckley v, American Constitutional Law Foundation, 119 8. Ct. 636 (1999) (striking down requirement that petition circulators be registered electors; name badge requirement for circulators; reporting requirements for paid circulators) jive process in history Even non-residents must be allowed to circulate initiative petitions within municipalities Chandler v. City of Arvada, 292 F.3d 1296 (10" Cir. 2002) But reasonable regulation of the initiative process is still possible Clark v. City of Aurora, 782 P.24 771 (Colo, 1989) Is there a single subject rule for municipal initiatives? Generally, no, the constitutional single-subject rule adopted for state initiatives in 1994 (Art. V. See. 1(8.5), Colo. Const.) does not apply to mun Bruce v. City of Colorado Springs, 200 P.3d 1140 (Colo. App. 2008) Case law specifically condones charter amendments that deal with multiple subjects. City and County of Denver v. Mewborn, 354 P.2d 155 (Colo. 1960) However, municipal or ordinance Colorado Springs Citizens for Community Rights v. City of Colorado Springs, 360 P.3d 271 (Colo. App. 2015) s can adopted their own local single-subject requirement by charter Empowered cities and towns, united for a strong ColoradoCan mui palities require initiative petitioners to participate in a hearing on the measure before commencing the petition process? Yes, via charter amendment or even a mere ordinance, initiative proponents can be required to participate in such a hearing ‘MeCarville v, City of Colorado Springs, 338 P.34 1033 (Colo. App. 2013) In 2002 the City and County of Denver adopted a “review and comment” process similar to the one used by the state per Art. V, See. (1)(5), Colo. Const. See: Sec. 8.3.7, Denver Charter; See. 15-3, D.R.M.C> Is a proposed initiative ripe for adjudication prior to the election? Generally no, not on the “substantive merits” McKee v. City of Louisville, 616 P.2d 969, 973 (Colo. 1980) See also: Polhill v. Buckley, 923 P.2d 119 (Colo, 1996). Exception: Litigation over compliance with procedural requirements associated with the petitioning process Board of County Commissioners of the County of Archuleta v. County Road Users Assn., 11 P.3d 432 (Colo, 1998) Exception: Litigation over whether the petition truly relates to a “legislative” matter ©. City of Aurora v, Zwerdlinger, 571 P.2d 1054 (Colo. 1977) (water rates) © City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo. 1987) (real estate purchase) © Witcher v. Canon City, 716 P.2d 445 (Colo, 1986) (lease amendments) © City of Colorado Springs v. Bull , 143 P.3d 1127 (Colo. App. 2006) (expenditure of street light charges) Vagneur v. City of Aspen, 295 P.3d 493, 506-507 (Colo. 2013) (roadway design) © Friends of Denver Parks v. City and County of Denver, 327 P.3d 311 (Colo. App. 2013) (land swap) © City and County of Denver v. Cerbo, 01CV2451, Denver District Court (July 18, 2001) (TIF cooperation agreement) ° Can a municipality refuse to implement or defend an initiated measures it deems to be unconstitutional, preempted, or otherwise illegal? The case of California’s refusal to defend Prop 8 banning same-sex marriage Perry v. Brown, 671 F.3d 1052 (9" Cir. 2012) Implementing dubious initiatives in a constit entirely nal manner rather than ignoring them© City of Golden v. Parker, 138 P.3d 285 (Colo, 2006) (interpreting initiative to prohibit, multi-year development incentives in a manner that would not impair existing contract rights) © The case of Denver's 2008 initiative calling for the impoundment of motor vehicles driven by unlicensed drivers, expressly targeted at “illegal aliens.” (Interpreting the measure to apply to all unlicensed drivers; not just a sanction on immigration status, in order to avoid conflict with federal law. See: Arizona v. U.S, 132 8. Ct. 2492 (2012),) What is the standing of initiative proponents after the measure has been approved by the voters and adopted into law? No standing to defend the measure in federal court Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) Denial of mandatory injunction in: implemented in any particular way Rocky Mountain Animal Defense v. Colorado Division of Wildlife, 100 P.3d 508 (Colo. App. 2004) isting that the initiated measure be interpreted and Examples of Unconstitutional Initiated Amendments to the Colorado Constitution (Since 1990) Amendment 5 of 1990: Congressional term limits US. Term Limits, Inc. v. Thornton, 115 $.Ct. 1842 (1995) Amendment 2 of 1992: No protected status based on sexual orientation. Evans v. Romer, 116 [Link]. 1620 (1996) Amendment 12 of 1996: “Pledge” to honor term limits by congressional candidates Morrissey v. State, 951 P.24 911 (Colo. 1998) Amendment 12 of 1998: Parental notification re abortion Planned Parenthood v, Owens, 287 F.3d 10 (10" Cir., 2002) Amendment 27 of 2002: Campaign and political finance Portions of the amendment found unconstitutional per: Citizens United v. Federal Election Commission, 130 8. Ct. 876 (2010); Colorado Right to Life Committee v. Coffman, 498 F.3d 1137 (10" Cir. 2007); Sampson v Buescher, 625 F.3d 1247 (10" Cir. 2010); Campaign Integrity Watchdog v. Colorado Citizens Protecting Our Constitution, 415 P.3d 874 (Colo. App. 2018); Holland v. Williams, 2018 WL 2938320 (D. Colo., June 12, 2018). Amendment 43 of 2006: Marriage is a “union of one man and one woman” Obergefell v. Hodges, 135 S. Ct. 2584 (2015).Amendment 54 of 2008: Restrictions on campaign contributions by “sole source contractors. Dallman v. Riter, 225 P.3d 610 (Colo. 2009). Amendment 20 of 2000 and Amendment 64 of 2012: “Legalization” of marijuana Under the Commerce Clause and the Supremacy Clause, the federal Controlled Substances Act remains fully operative in states that have purported to “legalize” marijuana. Gonzales v, Raich, 125 S$. Ct. 2195 (2005). See also: Coats v. Dish Network, 350 P.3d 846 (Colo. 2015). Examples of Unconstitutional or Preempted Initiated Ordinances Oil and gas bans Voss v. Lundvall Bros. Inc., 830 P.2d 1061 (Colo. 1992); City of Longmont v. Colorado Oil and Gas Assn., 369 P.3d 573 (Colo. 2016); City of Fort Collins v. Colorado Oil and Gas Assn. 369 P.3d 586 (Colo. 2016)