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LovelandPolitics
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Loveland - August 28, 2013

Loveland City Clerk Teresa Andrews denied yesterday the protest by Loveland resident Larry
Sarner of a ballot measure that bans fracking for two years among other measures.  The city clerk's
decision was provided in a long written legal analysis of the protest. (see our summary of the
complaint and clerk's responses in the column on the right)

Sarner and his attorneys, Jack Silver and Kent Holsinger, presented their case to Loveland's City
Clerk during a trial-like hearing on August 22, 2013.   The group proposing the ban on oil and gas
exploration among other measures in the same initiative (Protect Our Loveland) were represented
by Loveland attorney Stan Matsunaka.

The hearing exposed many irrefutable errors in the petitioner's process including improper
notaries, confusion over the number of signatures legally required to meet the city's 5%
requirement and raised questions over the efficacy of the ballot initiative's own language.  
Matsunaka's witnesses did not appear credible under cross-examination by Sarner's legal team who
appeared more well versed in the law and process required for such ballot initiatives.

Andrew's decision, however, is not just to decide whether or not there were errors in the process.  
The City Clerk would need to find substantial irregularities to rise to a level where she can deny the
initiative and reverse her decision qualifying it to appear on November's ballot if not adopted by
Loveland's City Council.  Relying heavily on Loveland's City Attorney John Duval for advice and
consent, Andrews determined Sarner's protest does not meet that criteria in essence arguing
throughout her plus 50 page response that Sarner failed to demonstrate the "substantial
non-compliance" of the petitioners when gathering signature and qualifying the initiative.

Once the petitioners gather 5% of the city's "qualified electors" signatures the issue is referred to
the Loveland City Council for immediate adoption or referral to the ballot for voters to decide.

Andrews concluded her analysis by stating,

"I conclude that the Protestor has not made a sufficient showing for me to reverse my previous
statement of sufficiency issued under....I therefore conclude that the Initiative and its petitions
have satisfied all the applicable requirements in the City's initiative process to proceed forward
under......"


Sarner's Uphill Battle

A protest on the "technical" grounds of a petition not meeting city code is problematic for a number
of reasons.  Initiatives circulated in Loveland are first approved by the City Clerk and City Attorney
for validity.  This means a decision in favor of Sarner's protest would likely mean an admission by
the City Clerk or City Attorney that they were themselves in error.  Loveland's City Attorney John
Duval has a long and controversial history of litigating losing arguments on behalf of the City of
Loveland instead of admitting to a mistake (like allowing votes in closed session).

It is common practice for the city attorney to engage in a negotiation with petitioners long before the
initiative is validated to ensure the language is not contrary to state or federal law and meets all the
city's criteria for such measures.  For example, Loveland attorney Mark Shaffer allowed changes to
the enforcement provisions of the proposed campaign finance limits ballot initiative he worked on
before it was qualified or circulated for signatures.  Loveland City Attorney John Duval felt the
enforcement provisions were too obligatory so drafted alternative language to assist the
petitioners.  Similarly, the Protect Our Loveland group's attorney Stan Matsunaka likely consulted
with Loveland's city attorney to tweak whatever Duval thought necessary to qualify it under the
city's charter as a future ordinance if eventually approved by voters.

Therefore, any determination by the city clerk that the ballot language is in error for reasons of the
single-subject rule, being retroactive or for conflicting with state law would also mean finding
Duval's own determination that it is valid was flawed.   Because Andrews is relying heavily on Duval
and his staff to prepare her response, that outcome was unlikely.

The group circulating the petition could later argue they relied detrimentally on Duval's advice thus
implicating the city in their failure at least morally if not also legally to provide the group proper
guidance.

In addition, asking the city clerk to invalidate voter signatures on a ballot initiative after she has
already qualified them is asking her to admit she approved invalid signatures on a petition.  Most
people in this circumstance will search every possible excuse or rationalization to avoid
acknowledging they carried out their official duties in a sloppy manner.

Is 45,044 All "Qualified Electors" in the City of Loveland?

The clear answer is no.   The Larimer County Clerk provided only the number of "active
registrations" to the City of Loveland which falls short of what the city charter requires which is for
an item to qualify as an initiative for the ballot - it requires 5% of all qualified electors.  The problem
is who is a qualified elector changes when state law changes.

Protect Our Loveland believed they needed to collect only 2,253 signatures by relying on
information provided by the City of Loveland.  In fact, 2,423 (5% of 48,441) is at least what is
required given recent changes in state laws causing mail-in elections to send ballots to all registered
voters whether active or inactive.

Loveland's City Clerk did concede with part of Sarner's complaint by invalidating 224 signatures of
the 2,743 she already accepted.  This leaves 2,519 valid signatures so following the city's logic the
ballot measure is still qualified given the fact the signatures exceed the threshold for all registered
voters of 2,423.  

Mr. Sarner's attorneys took the more conservative approach by arguing all the petitioners should
have been required to gather is 5% of all registered voters (both inactive and active) thus 48,441
which is just slightly more than 45,044.

However, the city's charter clearly indicates that 5% of all people eligible to vote in the election
should have signed the petition to qualify it for the ballot.  Given the State of Colorado enacted the
controversial "elections overhaul" bill earlier this year, every adult over the age of 18 living within
city limits is a "qualified elector."  This is because Colorado no longer requires voters to be
registered before election to participate in an election.  Any adult in Loveland can show-up at a
polling place to register and vote the same day of the election.  The argument by Loveland they
relied on the county clerk to provide them the number is also specious.  According to the newly
revised Colorado Election Code every adult within the City of Loveland is a "qualified elector" with
the exception of felons so a more reliable number would be the census instead of the County Clerk
and Recorder.

While the petitioners may have a good argument against the city because as relied on the faulty
numbers they were given, Sarner still has the argument that neither the city clerk nor city attorney
are permitted to amend the city's charter without council or voter approval.   The Loveland City
Clerk argues the only relevancy of the number is which one her office provided Protect Our Loveland
group regardless of whether or not they were accurate because it came from an official source.  She
stated in her official response,

"The Larimer County Clerk and Recorder's issuance of its 45,044 May 21 number to my office was
clearly an official act that carries with it the presumption of validity, absent clear evidence to the
contrary."

Taking this argument to its logical conclusion, if the city clerk informs a candidate they won an
election the real ballot tallies would not be relevant because it is her official duty to determine the
winner of the election.  Perhaps the above in defending someone from being prosecuted for failing to
comply with a particular regulation but this case is very different.  The city's charter clearly places
the burden upon those seeking to qualify a measure for the ballot to obtain the necessary 5% of
qualified voter's signatures.  It doesn't say the number identified instead by a city official.



Will It Be On The Ballot?

Probably yes.  Sarner will now need to seek an injunction by a state court to prevent the City Council
from allowing it to be on November's ballot if they fail to adopt the proposed  moratorium.  The city's
deadline from the county to place it on November's ballot is September 6, so it is unlikely Sarner can
litigate the case before that date.  The only option is an injunction against the city until the case is
heard.

Historically, judges have been reluctant to disqualify a petition from being placed on a ballot due to
technical problems in how the signatures were gathered.   The politically correct term is this
"disenfranchises" voters who otherwise thought they were signing a valid petition.   

If, however, a court finds the 5% threshold of signatures was not met (even counting all those
validated by Loveland City Clerk) or that the proposed language is contrary to state law (which
regulates oil and gas not cities) than he may succeed.
Larry Sarner
Upper left: Loveland attorney Stan Matsunaka
Lower right: Attorney Kent Holsinger & associates

Overview of Clerk's Decision
Below are the claims made by Sarner's protest
with the answers provided by the City Clerk.

1. The initiative's fracking ban is
retroactive as it applies, if passed, on the
day the initiative qualified for the ballot
instead of a date following approval by
voters.  Enforcing laws approved
retroactively violates the rights of
citizens and are largely unenforceable.

In response, the clerk argues she is "without
the legal authority in a petition protest
under...(law)...to determine that the
proponent's petitions are insufficient because
the proposed ordinance may be legally
problematic..."

2.  The anti-fracking ballot measure
violates the city's "single-subject" rule by
including a number of disparate items in a
single initiative thus confusing voters.

Andrews' response claims, "The clear purpose
of the Ordinance is to impose a two-year
moratorium on all activities related and
connected to hydraulic fracturing.  And since
the Ordinance is not a lengthy or complex
proposal, there is little likelihood that the
voters will be surprised or have concealed from
them the contents and purposes of the
Ordinance."


3.  The initiative contravenes state law
(which supersedes Loveland's authority)
and therefore will invite litigation from the
State of Colorado costing taxpayer's
unnecessarily.

The clerk's response to this charge is lumped
with the response to number 1 above.  Refer
to the answer in number 1 above.

4. Inadequacy of signatures gathered due
to improper notary dates, seals or other
technical deficiencies

The City Clerk stayed close to the definition of
"substantial compliance" when validating
signatures.  She quotes previous cases where
courts have determined that so long as there
was no willful intent to deceive or otherwise
defraud voters, the will of the petitioner to
validate the ballot measure must be
considered first regardless of the process
flaws (of which there were many).

However, she did agree with Sarner to
invalidate 103 signatures in the 2E Petitions
(Exhibit 2 Summary) due to the fact Matsunaka
failed to provide evidence that Notary Publics
who used expired seals were still indeed valid.  
Had he presented such evidence, those
petitions would have also been allowed with
most of the others.

Another 17 signatures were found invalid
because the person circulating those petitions
failed to comply with city ordinances requiring
the person soliciting for signatures certify they
are a Loveland resident.

Less than a dozen more signatures were
determined invalid for reasons like the case
where a disabled person required assistance
in filling in their name but the person assisting
failed to sign and disclose their own name thus
invalidating that disabled person's signature.

5. Failure to provide 5% of "qualified
electors" on the petition due to recent
changes in state law which expands the
number of "qualified voters" to include
inactive registered voters.

The Clerk's response is vintage city attorney
John Duval.  The argument is that whatever
the government determines (even when clearly
wrong) goes by citing cases where courts have
found a "presumption of validity and regularity
with respect to official acts of state and local
officials in Colorado and, in the absence of
evidence to the contrary, the courts will
presume that these officials have properly
discharged their official duties."

This form over substance argument appears to
ignore the clear evidence that both Larimer
County and the City of Loveland were in error
by only considering "active registered voters."

Especially odd in her response is the following,

"I find that Mr. Hagihara's testimony, while very
helpful to understanding this issue, falls short
of clear evidence that the Larimer County
Clerk and Recorder's 45,044 number is
invalid."

The clerk's argument is to make perfect the
enemy of good.  Because Mr. Hagihara could
not provide an indisputably perfect number of
how many active and inactive voters existed in
the county the day the petition was qualified,
does nothing to invalidate his clear testimony
that the methodology of only including a
subset of the "qualified electors" falls short of
the number required when determining the 5%
required to qualify the initiative for the ballot.

Indeed, the clerks in both the city and county
were apparently unaware of the change in the
law and therefore found the information
"helpful."