Mountain Law: Understanding the Ruby Placer referendum petition
Special to the Daily
As reported in this paper on March 19, the town of Blue River received a referendum petition from some of its residents with respect to the board of trustees’ controversial decision on March 3 to annex the Ruby Placer parcel. Let’s try to understand the legal background and implications of this development.
The electorate’s power to propose laws is known as “initiative” and its power to reject laws is known as “referendum.” These forms of direct democracy that allow the people to bypass their elected representatives to control laws are somewhat legally controversial. They arguably run contrary to the “Guarantee Clause” in the U.S. Constitution, Article 4, §4, which promises a “republican form of government.” Also, critics say, they replace “reasoned” political debate with heated campaigns designed to sway unknowledgeable voters.
Nonetheless, they became popular starting in the late 19th century as a way of reining in perceived abuses of political power by big bosses and special interests.
In this state, Colorado’s voters overwhelmingly voted in favor of amending the state constitution in 1910 to provide initiative and referendum powers.
The referenced amendment to the Colorado Constitution, Article V, §1, provides that the legislative power is vested in the General Assembly subject to the people’s reserved powers of initiative and referendum. These powers are available for all state laws as well as town ordinances like the one at issue. Towns are allowed to adopt ordinances concerning the manner that voters may exercise the initiative and referendum powers. However, in no case may a town ordinance require more than 10 percent of the registered voters for a referendum or 15 percent for an initiative. Unless I am mistaken, Blue River has not adopted any particular referendum ordinance, so state law solely governs the matter.
Colorado state statutes provide detailed procedures for “referring” town ordinances. These statutes require a petition protesting an ordinance, signed by at least 5 percent of the registered voters in the town, and filed with the town clerk within 30 days after final passage and publication of the ordinance. The petition must have a certain statutory form. Filing the petition automatically suspends the ordinance from taking effect.
Once a petition is received, the town clerk must decide if it is “sufficient” using reasonable means. Generally, that involves getting a list of registered electors from the county and comparing with to the signatures in the petition. The clerk must decide the sufficiency of the petition within 30 days (or else the petition is deemed sufficient). There is a process for voters to protest the clerk’s determination and, ultimately, have it reviewed by the court as necessary. That process can take time. For instance, in one recent case, the city of Grand Junction approved a rezoning in September 2008 and, after a protest went to the town clerk and through the court system, the Colorado Court of Appeals issued a final ruling in January 2011 that the petition was sufficient.
After the sufficiency of the petition is established, the governing body — in this case the board of trustees — must promptly reconsider the ordinance. The governing body has two options: (1) repeal the ordinance; or (2) submit the ordinance to the voters. Any election must be held not less than 60 nor more than 150 days after the petition is determined to be sufficient. The ordinance will not take effect unless approved by a majority of voters at an election.
It will be interesting to watch the Ruby Placer referendum process unfold. The clerk’s determination of sufficiency will be critical; we can then watch whether any protests are made and whether a court case is initiated. Once that plays out, the matter will potentially go back to the BOT for either repeal or to be put to the voters.
For more on the Ruby Placer issue, turn to Page 13.
Noah Klug is owner of The Klug Law Firm LLC in Summit County, Colorado. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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