NEWS BLOG |
Loveland's Independent News Source |
Anti-Fracking Initiative Unlikely To Make November 5, 2013 Ballot |
EMAIL FROM LOVELAND ATTORNEY TO CITY COUNCIL ________________________________ > From: John Duval > Sent: Wednesday, August 28, 2013 5:26 PM > To: City Council > Cc: Jeannie Weaver; Terry Andrews; Tom Hacker > Subject: Citizen Initiative > Privileged & Confidential > > I want to give the Council a heads-up on what its next steps are concerning the citizen initiative for the fracking moratorium now that the City Clerk has issued her determination upholding her previous decision that the initiative proponent’s petitions are sufficient. On your agenda this Tuesday night will be the item previously pulled from your agenda for Council to decide whether to adopt itself the initiative ordinance or to refer it to the voters at the November 5 election. In order to make the November 5 election for this initiative, it is necessary for Council to refer the initiative and approve its ballot title in time for that ballot title to be certified to the County Clerk by September 6. Consequently, Council’s September 3 meeting is your last chance to do this unless Council calls a special meeting. However, the fact that the protestor can appeal Terry’s recent determination complicates things. > > The controlling statute requires that within 20 days after the “final determination of petition sufficiency” is issued, the Council is to either adopt the initiative ordinance as proposed or refer it to the voters. Unfortunately, it is not clear in the statutes when a city clerk’s determination of petition of sufficiency is “final”. I think the better and safer interpretation is that it is not final until all appeal periods have expired. > > Unfortunately again, it is not clear what the appeal period is in these circumstances because the controlling statute is silent on when and how an appeal is to be taken to district court. It is likely, therefore, that the courts would consider the appeal in these circumstances as occurring under Rule 106 (a)(4) of the Colorado Rules of Civil Procedure. Under this rule, the protestor has 28 days from the date of the issuance of Terry’s determination in which to file the appeal. Since Terry issued her decision yesterday, August 27, the protestor arguably has at least until September 24 to file his appeal---well after the September 6 deadline to certify this ballot question to the County for the November 5 election. > > To address this complicating fact, I have added provisions to the proposed Resolution that refers the initiative to the voters to authorize the City Clerk to either withhold certifying the ballot title to the County Clerk if an appeal is filed on or before September 6 or to authorize her to ask the County Clerk to take it off the ballot if the appeal is timely filed after September 6. > > What I don’t know is how practical it will be to expect the County Clerk to remove the ballot title if we don’t know until after September 24 whether an appeal has been timely filed. I have a call into the County Clerk’s office to see if I can determine this. I will let you know what I learn. > > In the meantime, please let me know if you have questions about this. > > John > 962-2541 |
John Duval Loveland City Attorney |
Anti-fracking petition circulators, city officials, Larry Sarner and others gather in city hall as Loveland's City Clerk (upper left) presides over protest hearing flanked on the right by Loveland City Attorney John Duval |
FACTOID There are only two ways a measure is placed on the Loveland municipal election ballot, referral or initiative. The "referral" is simply by a majority of the council voting to place an ordinance on the ballot for voter approval while an "initiative" is the result of a petitioner gathering 5% of "qualified electors" signatures to place a measure on the ballot without council. Thus the difference between a "referendum" and an "initiative" plus the number assigned it by the election authorities. However, every initiative must first go to the council who than have the option of simply adopting the initiative before deciding to spend the money to place it on the ballot for voter approval or rejection. |