A recent editorial by the Loveland Reporter-Herald entitled, “Petition ruled valid, so action is perplexing” is riddled with factual errors which explain why the author is so “perplexed” about the City Council’s recent decision not to refer the proposed fracking ban initiative to the November 5, 2013 ballot. The simple answer is they legally cannot.
The Editorial uses the terms “referendum” and “initiative” synonymously which explains the author’s confusion. Under state law, a referendum and initiative are very different creatures each with its own distinct process and origin. Loveland’s City Council, as a matter of law, cannot place an “Initiative” on any ballot so the newspaper’s assertion they should have done so is embarrassing. What the council can do is propose its own ordinance for voter approval which doesn’t appear on the ballot as an “initiative” but instead as a “referendum.”
An important distinction between the two is the city has an obligation to determine the legal “validity” of a referred ordinance but not necessarily for an initiative.
The editorial claims Loveland’s City Clerk, Teresa Andrews, determined the anti-fracking petition presented to her office was legally “valid” therefore Loveland’s City Council has an obligation to refer the proposed ordinance to the November 5, 2013 ballot. Again, the author confused an initiative with a referendum. Once legal appeals have been exhausted, the city is obligated to place the initiative on the ballot but cannot before the matter is settled in court.
The clerk made no determination regarding the “validity” of the proposed anti-fracking initiative’s language because it is an initiative and not a referendum. Had the Loveland City Council directed staff to prepare an anti-fracking “referendum” for the ballot, City Attorney John Duval would be charged with determining the validity of the proposed new law being referred to the ballot.
Apparently, the author of the RH Editorial failed to read the clerk’s lengthy decision regarding the citizen challenge of the initiative evidenced by the following errors stated in the Editorial.
“After hearing the protest and weighing the issue, the city clerk denied the protest and said the petition qualified for the ballot…..That is the current status of the petition: valid.”
Notice the above paragraph uses the term “qualified” synonymously with “valid” or is somehow claiming once “qualified” something must be “valid” which is a fallacy. Indeed the clerk did find the petition qualified for the ballot (based in the number of signatures) but specifically did not opine on its validity.
The clerk quoted the following sentence from a Colorado Supreme Court ruling that officials “may not interfere with the initiative process to address challenges to the substantive validity of an initiative before it is actually adopted.” Note they are talking about an initiative here and not a referendum.
Notice that pesky word “validity” which she explains in her position paper immediately following the above quote,
“I therefore conclude that I am without the legal authority in petition protest challenge under C.R.S. Section 31-11- 110 to determine that the Proponent’s petitions are insufficient because the proposed ordinance may be legally problematic if adopted due to its retroactive effect or because it may be preempted by state law.”
What the clerk did determine is the initiative is “qualified” to be placed before the voters due to the number of signatures she verified. Unfortunately, the city provided the circulators of the petition the wrong number to qualify which is just one of many issues being litigated before the 8th Judicial District Court by Loveland resident Larry Sarner.
An especially troubling conclusion in the RH Editorial is the erroneous statement, “Under state law, that means it should be going to the voters of this city.”
On the contrary, under state law a citizen has the right to protest an initiative he or she can show is either not qualified or is invalid. In this case, Sarner is arguing both so it will be up to the courts to determine whether or not his claims are frivolous by either hearing the case or dismissing it. Unlike the judiciary, it appears the RH has already made a ruling on Sarner’s complaint by stating in the same Editorial, “Dilatory tactics should not be rewarded. This should in no way indicate support for the moratorium itself….”
Labeling Sarner’s protest and litigation as “dilatory tactics” is to argue his complaints are without merit and only meant to delay an otherwise qualified and valid initiative. How does this not indicate support for the initiative by the newspaper?
The Editorial is misleading, uninformed and intellectually dishonest; by pretending the RH hasn’t taken a position on the initiative. Adopting and publishing partisan demagoguery benefits no one so we recommend next time the RH perform its own due diligence. An immediate retraction of the “perplexing” editorial is in order.