Permanent Injunction on Ballot Question 2A Filed
In the 10th Judicial District of the State of
Colorado
JOHNATHAN MASTERS, a Citizen of Pueblo City
Plaintiff,
v.
The Government of Pueblo City, Colorado
Defendant(s)
* * *
Complaint for Permanent Injunctive Relief
* * *
Introduction
Ballot Question 2A in the upcoming November 7, 2017 Pueblo City
general election is titled “Charter Amendment (Change Form of
Government to Mayor-Council)”. Ballot Question 2A has been
nicknamed the "strong mayor" ballot question. Ballot
Question 2A is over 400 words long. The ballot question corresponds
to a 10-page document, which includes 70 changes to the 1954
Charter, including changes to all 3 branches of the government of
Pueblo City.The main changes for Ballot Question 2A is the change in the name of the chief executive, & the manner in which the chief executive is elected. Ballot Question 2A is going to change the name of Pueblo's chief executive from "City Manager" to "Mayor". In this document, "Chief Executive" for used for both positions. “Charter Commission” and “Charter Convention” is also used interchangeably.
Per the 1954 Charter, Pueblo City's chief executive is currently not popularly elected. The 7 members of City Council are popularly elected, & then City Council, by majority vote, hires & fires the City Manager at will. Ballot Question 2A changes that. Ballot Question 2A requires Pueblo City's chief executive to be popularly elected, every four years, after the first 5-year Mayoral term, beginning next year, to be elected in the November 2018 general election.
Many of the 70 proposed changes simply replace "City Manager" with "Mayor".
The current powers of the City Manager & the Mayor's proposed powers, in most respects, stay the same. They are both Pueblo City's chief executive. Neither have a vote in City Council. The Budget starts with them. They hire & fire nearly all of the city employees without City Council inference. Both have the exclusive power to give direct orders out to all of the city employees, which the city council is strictly forbidden to do so. Both have to write an annual State of the City report & an annual Budget report.
The proposed Mayor will have a veto, whereas the current City Manager does not. The proposed Mayor cannot be fired by the City Council, whereas the current City Manager can be, at will, with a simple 4 of 7 majority vote. City Council is stripped of their “firing the chief executive” power, which is a substantial weakening of the legislative branch, & strengthening of the executive branch.
The veto power also increases the Mayor's powers, since City Council must wait until the next City Council meeting to overrule that veto, but some of the chief executive powers have been cut. The proposed Mayor can't sign Surety Bonds anymore (Section 3-14), whereas the current City Manager can. The current City Manager can hire & fire everybody, including Department Heads, without City Council interference. Ballot Question 2A gives City Council confirmation powers for department heads that the chief executive nominates, increasing the power of City Council, & lessening the power of the proposed Mayor.
Ballot Question 2A proposes to change all 3 Branches of Pueblo City's government. While substantial changes to the Executive Branch have been the main focus of Ballot Question 2A (2017), the powers of the Legislative & Judicial Branch have also been changed too, significantly.
Per the 1954 Charter, Pueblo City Council currently hires & fires the Municipal Judges unilaterally (without interference from the chief executive). Ballot Question 2A proposes that the chief executive wins the sole nomination power of new Municipal Judges, with City Council merely confirming them. The Mayor would also have absolute power over the firing of the Municipal Judges.
City Council won’t be able to hire & fire the Chief Executive & the Municipal Judges at will anymore under Ballot Question 2A. All motions, ordinances, & resolutions of City Council can be vetoed under Ballot Question 2A.
Ballot question 2A also proposes some seemingly minor, albeit curious, changes. The Aviation Department is now governed by Ordinance, instead of Resolution (Section 14-1). A "Purchases & Supplies" Department is being added (Section 7-28). Section 6-4 eliminates a specific 60 day provision & adds a curious "or by a City employee acting within the course of employment" clause.
Jurisdiction & Venue
Home Rule cities, in general, handle local issues, & the State handles issues of statewide concern, governed by general state legislation, & State Courts determine that distinction (Denver v. Bossie 1928; Hershey v. McNichols 1932). Article 20, Section 6 of Colorado’s Constitution was added in 1912, which makes all post-1912 Colorado Supreme Court cases relevant.
Parties
Plaintiff, Johnathan Masters, is a citizen of Pueblo City, who
will be affected by Ballot Question 2A.Defendant, The Government of Pueblo City - the City Council, City Manager, & the City Clerk, with the consent of the City Lawyer - placed Ballot Question 2A on the ballot.
Nature of Action
Legal Background
Pueblo City’s 1954 Charter is Pueblo City’s “organic law” & it’s extends “to all its local & municipal matters”. Pueblo City, by virtue of Article 20, Sections §§ 1, 4, & 5, gets all of the essential & indispensable powers necessary for the government of its local municipal affairs, including the power to “amend, add to, or replace the charter (emphasis added)” of Pueblo City, "which shall be its organic law and extend to all its local and municipal matters." (City & County of Denver v. Mountain States Tel. & Tel. Co., 67 Colo. 225, 184 P. 604 (1919)).
Home Rule Cities have a major stake in writing – and abiding by - their own local Charter.
The 1912 Home Rule Amendment extends Pueblo City’s municipal power “as broad as possible within the scope of a Republican form of government of the State”. Per Justice Dennison, “[The] Home Rule Amendment was intended to reiterate unmistakably the will of the people that the power of a municipal corporation should be as broad as possible within the scope of a Republican form of government of the State (emphasis added), and, viewed in that light, it is a valuable guide in interpreting the 20th Amendment.” (Fort Collins v P.U.C. (1921)).
In the 1962 Four County Metropolitan case, the state court decided that home rule cities in Colorado in local matters had complete absolute plenary authority. Therefore, municipal policy exercised by a Home Rule City in Colorado is the equivalent of "state action" when exercised in connection with municipal affairs. (Four-County Metropolitan Capital Improvement District v. Board of County Commissioners [149 Colo. 284,] 369 P.2d 67, 72 (1962)).
The 1954 Charter of Pueblo City begins with a Preamble. After the Preamble, there's Section 1-1, and Section 1-2 is situated right after Section 1-1.
Per the first sentence of Section 1-2, Pueblo City's form of government – named the “Council-Manager Government” - “shall not be changed except by Charter Convention upon majority vote of the qualified voters.” Pueblo City's Founding Fathers added the high threshold of a Charter Convention in order to protect Pueblo City's Council-Manager System. Section 1-2 clearly states that the only way Pueblo City's form of government can be changed is by way of a Charter Convention. Ballot Question 2A, instead, proposes to change Pueblo City’s “Form of Government to Mayor-Council”, by ballot question, not by the constitutionally-required Charter Convention. In order for Pueblo City to replace the City Manager with a Mayor, a Charter Convention must be convened. In order for a Charter Convention to be convened, the people of Pueblo City must vote for a Charter Convention first. Without a Charter Convention, Pueblo City cannot change her form of government.
Instead of abiding by the the Charter Convention clause, the government of Pueblo City is attempting to change our form of government illegally & unconstitutionally by way of Ballot Question 2A.
After ignoring the Charter Convention clause Section 1-2, as one of the 70 changes Ballot Question 2A proposes, Ballot Question 2A adds insult to injury by gutting out the Charter Convention clause from Pueblo’s current governing Charter altogether. The “Charter Convention” clause of Section 1-2 gives Pueblo City double protection for our home rule status. By stripping the Charter Convention clause in Section 1-2 out of Pueblo City’s 1954 Charter, Pueblo City’s independent constitutional standing will now be solely dependent on the restraint of the State.
State Power v. Local Charter Power
Much of the debate between the gray “twilight zone” area of
statewide powers versus local powers have been determined by the state
courts. In general, the state concerns itself with statewide
concerns, & the local government concerns itself with local
concerns.Here’s a list of 10 areas state courts have determined to be of local concern – not state – for home rule municipalities: 1) Municipal Courts (People ex. rel. McQuaid 1932; Hardamon v Municipal Court 1972); 2) Local land use & zoning (Roosevelt v City of Englewood 1971; City of Colorado Springs v Smartt 1980; Vista Village v City of Boulder & Boulder Builders v. City of Boulder); 3) Capital Improvement Construction (Davis v City of Pueblo 1965; Four County Metropolitan Capital Improvement District 1962; Berman v. Denver 1965); 4) Election & Recall (Laverty v. Straub 1943; International Brotherhood of Police Officers Local 127 v. Denver 1974; Bernzen v. City of Boulder 1974); 5) Broad Employee Regulation, including municipal employee residency requirements (City and County of Denver v. State of Colorado 1990); 6) Theft of Items under $300 (Haddock 1990, 2); 7) Public Right of Way Franchises (City of Greeley v. Poudre Valley Rural Electric 1987; City of Montrose v. P.U.C. 1987); 8) Police Courts (Blackman v. County Court, 169 Colo. 345, 455 P.2d 885 (1969); Huff v. Police Court, 173 Colo. 414, 480 P.2d 561 (1971)); 9) Taxing for Revenue (West Coast Advertising Company v. City & County of San Francisco 1939), &; 10) Broad Condemnation of Property power; (Article XX, Section 1; City of Thornton v. F.R.I.C.O 1978).
Home Rule cities have “plenary” legislative authority over matters exclusively local in nature. Plenary means “absolute”. (McNichols v. City & County of Denver, 101 Colo. 316, 74 P.2d 99 (1937); City & County of Denver v. Palmer, 140 Colo. 27, 342 P.2d 687 (1959); Kelly v. City of Fort Collins, 163 Colo. 520, 431 P.2d 785 (1967)).
1) Liquor Regulation (Colorado Constitution, Article XXII); 2) Utility Charges & Rates (PUC v City of Durango; Denver v. PUC); 3) Felonies (City of Aurora v. Marin 1973), &; 4) certain other criminal acts (Gazotti v. Denver 1960) are 4 areas Colorado courts have determined to be of statewide concern.
Local home rule immunity can be easily overridden by a state statute treating the policy problem as one of “statewide” rather than exclusively municipal concern. Colorado’s legislature may enact overriding provisions where there is a question of public policy.
Cities have exclusive & absolute & plenary dominion over the construction of our own local Charters. “The powers of a chartered municipality are part of the constitutional powers granted to the home rule city by the people” (Pueblo Aircraft Service, Inc. v. City of Pueblo 1980). When designing a Charter, common sense dictates that it is incumbent upon the City herself to design the best system of government for herself. The State legislature may act as a guide, but Section 1-2 constitutionally guarantees Pueblo City’s right to conduct her own Charter Conventions.
In addition to being a Constitutionally-protected right, Pueblo City has an inherent right to write our own governing constitutionally-protected Charter. “It is natural to a republic to have only a small territory, otherwise it cannot long subsist.” ... “In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen.” (Charles de Montesquieu (from “spirit of laws, chap. xvi. vol. I [book VIII]”) as quoted by Brutus 1).
By design, a City Charter is purely local in nature. A local governing municipality (county, town, city, or village) must create the best governing Charter it thinks best for it’s own local interests.
Article 20, Section 6 is self-executing. Section 1-2 of the 1954 Charter is a clear expressed power, protected Constitutionally. Section 1-2 isn’t an implied power, or a “power incident to”. Section 1-2, instead, is a clear expressed power. The requirement of a Charter Convention in Section 1-2 to change Pueblo City’s government is narrowly constructed, & the wording & their definitions & their clear expressed intent is extremely clear. We Puebloans can only change our Charter by a Charter Convention, not now nor ever by mere ballot initiative.
“Neither an act of legislature, referred or unreferred, nor an initiated law (emphasis added), can recall any power or privilege granted by the constitution.” (Fort Collins v. Public Utilities Commission of Colorado, 1921).
There's no specific details in the 1954 Charter for how a Charter Convention is supposed to be conducted, which allows for the people of Pueblo City to conduct our own Charter Convention however we see fit.
A fundamental governing principle of democracies the world over is that ultimate sovereignty resides in the people. Democracy is a government of, by, & for the people. Article II, Section 1 of Colorado's Constitution declares that all power lies with the people: “All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”
The Cooley Doctrine says that cities have an inherent “absolute right” of self-rule & “the state cannot take it away”:
“The state may mold local institutions according to its views of policy or expediency: but local government is a matter of absolute right & the state cannot take it away. It would be boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agent to administer it; or to call the system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all.” (LeRoy v. Hurlbut 1871).
Thomas M. Cooley relied on Alexis Tocqueville & his “Democracy in America” for his defense of local government. Tocqueville admired the autonomous authority of the local government in New England. “The township of New England is so constituted as to excite the warmest of human affections, without arousing the ambitious passions of the heart of man.” … “In the township, as well as everywhere else, the people is the only source of power.” Home Rule Cities fosters active civic responsibility amongst the local citizenry. “If the municipal bodies were made powerful & independent, the authorities of the nation might be disunited & the peace of the country endangered. Yet, without power & independence, a town may contain good subjects, but it can have no active citizens.” (Tocqueville, “Public Spirit of the Townships of New England”, Democracy in America).
Even right-wing conservative John Forrest Dillon said that eliminating local governments would be “so great a folly and so great a wrong”. (City of Clinton v. Cedar Rapids & Missouri RR, 1868).
Colorado Constitution establishes her love of independence in her Preamble: “...in order to form a more independent & perfect government...”.
Pueblo City's home rule status is constitutionally protected, but not democratically protected. The well-spring of democracy springs from the people, & cities are chock full of people. People are the heart & soul of democracies the world over. Pueblo City, by the virtue of being a city filled with the sacred & sovereign people, therefore, has all the powers that extends to a Republic. All power belongs to “We the People”, but “We the People” can lose our democracy if we become complacent. Eliminating the Charter Convention clause deprives ourselves of one protection for our autonomy, freedom, & democracy (i.e. our Home Rule status) in Pueblo City.
Precisely 100 Home Rule cities & 1 territorial charter municipality (Georgetown) in Colorado enjoy very strong Constitutional Home Rule provisions.
Article 20, Section 6, Clause 5 of Colorado's Constitution protects the “full right of self-government” of Pueblo City “in both local & municipal matters”:
“It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.” (Article 20, Section 6, Clause 5).
Pueblo City “shall have all the powers granted to municipal corporations and to cities by the Constitution” & “general laws of this State”, plus “all the implied powers granted.” The 1954 Charter reconfirms our right to self-government when it declares that the city of Pueblo “shall have perpetual secession” (Section 1-3).
There's at least 2 clauses in Article 20, Section 6 that makes Pueblo City's Constitutionally-protected Home Rule status particularly robust. Article 20, Section 6, Clause 2 declares that the ordinances & statutes of Pueblo City “shall supersede” ... “any law of the state in conflict therewith”. Clause 6 of Article 20, Section 6 doubles down on how Pueblo City's local laws supersede state law: “The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.” (Article 20, Section 6, Clause 6).
In Colorado, Charter Law is superior to, & takes precedence over, State Law, especially in purely local matters. (Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); DeLong v. City & County of Denver, 195 Colo. 27, 576 P.2d 537 (1978); Boulder County Apartment Association v. City of Boulder, 97 P.3d 332 (Colo. App. 2004). Bennion v. City & County of Denver, 180 Colo. 213, 504 P.2d 350 (1972). R.E.N. v. City of Colo. Springs, 823 P.2d 1359 (Colo. 1992); City & County of Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001). Winslow Constr. Co. v. City and County of Denver, 960 P.2d 685 (Colo. 1998)).
The State’s “Charter Commission”
Colorado home rule city's inherent election powers is codified & institutionalized into law by Article 20, Section 6 (d.), the strongest plank of the list of 8 constitutional home rule powers protected by Colorado’s Constitution:
“(d.) All matters pertaining to municipal elections in such city or town, and to electoral votes therein on measures submitted under the charter or ordinances thereof (emphasis added), including the calling or notice and the date of such election or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, canvassing, certifying the result, securing the purity of elections, guarding against abuses of the elective franchise, and tending to make such elections or electoral votes non-partisan in character;” (Article 20, Section 6 (d.)).
Pueblo City has constitutionally-protected authority to handle "all matters" pertaining to her own elections, & Article 20, Section 6, (h.) protects a chartered home rule city to impose "fines & penalties for the violation of any of the provisions of the charter, or of any ordinance adopted in pursuance of the charter."
While the 1954 Charter doesn't provide any guidelines for how Charter Conventions in cities should work, the State offers micromanaged & detailed suggestions with CRS §31-2-204, §31-2-206, §31-2-207, & §31-2-210.
First, the voters of Pueblo City vote for a Charter Commission. Voters in Colorado's home rule cities can either get a “Charter Commission” by petition, or by City Council ordinance.
The easiest & quickest way to initiate the process for a Charter Commission would be by City Council Ordinance. 2/3 of City Council must vote for the Charter Commission ordinance (§31-2-210(2)(b)). 2/3 of 7 is 4 2/3, which rounds up to 5. The Charter Convention process can be initiated by 5 votes from the 7-member City Council of Pueblo City.
If Pueblo’s City Council fails to pass an Ordinance for a Charter Commission, then the people of Pueblo City can bypass the Charter Commission on the ballot by petition. “The petition must be signed by at least 15% of the registered electors of the municipality” (§31-2-210(2)(a)(II)).
If the voters approve of a Charter Commission, then Pueblo City’s voters will need to vote for delegates for that Charter Commission in a Delegate Election. “Within 30 days of initiation, the governing body must call an election to form the charter commission and elect members of the commission” & then that election “must be held within 120 days of the call of the election.” (CRS §31‐2‐204(2)). “All registered electors of the municipality” are eligible, & “any vacancy on the charter commission shall be filled by appointment of the governing body.” (§31-2-210(3)). Those who are interested in being a delegate for the Charter Convention, “must file a sufficient petition with the clerk within 30 days of publication of the election notice, signed by at least 25 registered electors.” (§31‐2‐204(3)).
A district and/or at-large map of Pueblo City must be drawn up. The delegates will come from the “compact districts of approximately equal population” that the municipality divided into, or there can be a combination of districts & at-large candidacies (§31-2-210(2)).
The Charter Commission may be composed of 9 to 21 members (must be an odd‐number). (§31‐2‐206(1)(b)).
Within 20 days after the delegates to the Charter Convention have been elected, the Charter Convention “shall meet at a time and date set by the governing body” (§31-2-210(4)).
All Charters written in Colorado State must have provisions “governing initiative, referendum of measures, and recall of officers” (§31‐2‐212).
Within 180 days after the delegates to the Convention have been elected, a proposed charter shall be submitted to the governing body (§31-2-210(10)).
Within 30 days after the new proposed Charter has been submitted to the governing body, a notice of the Charter Election needs to be published (§31‐2‐207(1)).
From at least 30 days up to 185 days after the publication of the notice of the Charter Election, the Charter Election, finally, will be held.
Overall, 3 elections is needed in order to fundamentally change Pueblo City's form of government: 1 election is to get voter approval for a Charter Convention, 1 election is to get voter approval of the delegates to that Charter Convention, & 1 election is needed for the voters to approve of the new Charter.
There's a whole other separate set of rules for how a County is supposed to administer a special election for the new Charter that was written by a Charter Commission (§30-11-505).
Conclusion
Denver, Boulder, Pueblo, Colorado Springs, Grand Junction, Trinidad, Fountain, Manitou Springs, Canon City, & La Junta, and many more cities in the Centennial State, have “Imperium In Imperio” jurisdiction. “Imperium In Imperio” is a Latin phrase meaning “a sovereign government power within another sovereign government power”.
Ballot Question 2A is unconstitutional on it's face. Even the opposing legal theory of the Cooley Doctrine - Dillon’s Rule - would agree. The government of Pueblo City didn't use the proper channels that changing the form of government in Pueblo City – an American city-nation governed by Charter Law – requires. The Charter couldn't be more clear or more explicit about the proper method of changing the form of government in Pueblo City. Section 1-2 establishes the City Manager as the chief executive, and if anybody in Pueblo City wants to change that, then they must abide by the Charter Convention provision of Section 1-2. The government of Pueblo City was so annoyed with that pesky Charter Convention clause, they removed that pesky Charter Convention provision in Section 1-2 in their bundle of 70 changes in their 10 page document corresponding to Ballot Question 2A.
Instead of going through a charter convention, as the 1954 Charter mandates, with 3 elections & lots of other specific requirements Colorado statutes require, the government of Pueblo City is attempting an illegal & unconstitutionally “back door” approach to changing Pueblo City's form of government with Ballot Question 2A.
Not only is the Chief Executive's powers going to be changed with Ballot Question 2A, but so is the Legislative & the Judicial Branches of the City Government. Ballot Question 2A is more akin to a brand new “skinny Charter”, instead of a mere ballot question.
The government of Pueblo City put Ballot Question 2A on the ballot, but they simply weren't allowed to. Ballot Question 2A is akin to putting a “Ban Free Speech” or “Ban the 2nd Amendment” ballot question on the ballot. On it's face, it's not Constitutional, so therefore, it’s illegal, & should have never been put on the ballot to begin with.
If a person collected $200 before "passing Go" in Monopoly, they simply aren't allowed to do so. It's against the rules, & if the cheater insisted on cheating, I wouldn't play the game with them anymore.
If a person moved a knight 9 spaces on a chess board, they'd have to move their piece back, or else, they forfeit the game.
That's what the government of Pueblo City should do. Move their piece back.
Or forfeit the game.
If those who supported Ballot Question 2A truly wanted to change Pueblo City's 3 branches of government, & change Pueblo’s City Manager into a “Mayor”, then they should go through the proper legal & constitutional channels in order to do, i.e. a Charter Convention.
Ballot Question 2A should be declared null & void by way of a permanent injunction.
Respectfully submitted this 26th day of October, 2017,
Johnathan Masters
Pueblo, CO
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