Masters' Verified Reply (filed December 7, 2017)
District Court, Pueblo County, Colorado
Court Address: 501 N. Elizabeth St., Pueblo CO 81003
JOHNATHAN MASTERS, CITIZEN
v.
GOVERNMENT OF PUEBLO CITY
Case Number: 2017 CV 93
Division 502
PLAINTIFF'S VERIFIED REPLY TO RESPONSE OF COMPLAINT FOR PERMANENT INJUNCTION RELIEF AND MOTION
Defendant Offers Fictitious Statute As Defense
1. Per the response of the legal counsel for the Colorado municipal corporation, The City of Pueblo, the government of the City of Pueblo, herein "Defendant", has no case.
2. Plaintiff's entire case is based upon Section 1-2 of the City of Pueblo's City Charter.
3. Section 1-2 is the 3rd sentence on page 1 in Pueblo City's central governing document.
4. Plaintiff alleges that the government of Pueblo City put a ballot measure on the general election ballot which is blatantly unconstitutional.
5. Section 1-2 gives Pueblo City the clearly expressed constitutional power to change her government whenever & however she pleases, as long as a "Charter Convention" was convened, and the majority of the voters approved the new Charter that the Charter Convention churned out.
6. Not referendums, nor Initiatives, can overrule that which is Constitutional. "Neither an act of legislature, referred or unreferred, nor an initiated law, can recall any power or privilege granted by the constitution." (Fort Collins v. Public Utilities Commission of Colorado, 1921).
7. The only legal argument that the Defendant offered to contradict Plaintiff's assertion that the government of Pueblo City must abide by her own Section 1-2 was by the single State statute C.R.S. 32-2-210(1)(b) being in "direct conflict" with it.
8. Unfortunately, no Title 32, Article 2 laws exist in the State of Colorado's legal code.
9. According to 2017 C.R.S. laws, Title 32 covers "Special Districts", and Title 32, Article 2 specifically covers "Metropolitan Recreation Districts", and those laws, numbering 32-2-101 to 32-2-134, have been "(Repealed)".
10. There are no further laws past C.R.S 32-2-134, therefore, C.R.S. 32-2-210(1)(b) is fictitious.
11. While it appears that the Defendant may be creating fictional laws out of thin air in order to cover up the municipal corporation's involvement with the unconstitutional Mayor referendum, since this case is a matter of public policy, information & logic leads me to believe that the Defendant actually meant CRS 31-2-210(1)(b), not CRS 32-2-210(1)(b).
12. Plaintiff's theory of government is that all governments in the United States of America, and laws passed by those governments, get their legal authority from their respective written Constitutions.
13. The "Masters theory of government", self-named by & after Plaintiff, is that all Puebloans live in a Constitutional Republic, which upholds the Rule of Law, and is broken up into 3 co-equal & independent branches of government, in order to prevent tyranny.
14. All laws for Pueblo City specifically originate from the 1789 US Charter, the 1876 Colorado Charter, & the 1954 Pueblo Constitution - 3 Constitutions, local, state, & federal - always in tandem with each other, forming the solid bedrock foundation of the fundamental laws that a peaceful & prosperous American-Coloradoan-Puebloan civil society needs to exist.
Some History
15. In 1911, after months of weekly columns supporting a Charter Convention from the progressive Republicans who ran the Pueblo Chieftain, Pueblo City became free & independent when she first chartered herself into existence.
16. The State of Colorado would catch up to the Home Rule movement 1 year later, adding the Home Rule Amendment into Colorado's Constitution in 1912.
17. Prior to 1911, Pueblo City had 23 Mayors (several non-consecutive), but without a Charter, existed in name only.
18. The 1912 Home Rule Amendment - Article 6 of Section XX of Colorado's current 1876 Constitution - specifically protects Pueblo City's Charter by name, as well the city charters of Denver, Colorado Springs, & Grand Junction. (Article 20, Section 6, Clause 7).
19. In 1954, Pueblo City rewrote her own Charter, via Charter Convention, and changed her former "Commission style of government" into a "City Manager style of government".
20. In that brand spanking new 1954 Charter, the very Charter Pueblo City has been operating under for the last 63 years -- Section 1-2 -- the 3rd sentence on page 1 of Pueblo City's Constitution, mandates that in order for one to change Pueblo City's "City Manager form of government", a Charter Convention must be convened.
21. On June 11, 2017, Councilman Ed Brown introduced the unconstitutional Mayor referendum proposal to Pueblo City Council.
22. On June 26, 2017, Pueblo's City Council unanimously votes in favor of the unconstitutional Mayor referendum.
23. A proposal to change Pueblo City's "form of government" was placed on the general election ballot in 2017, but that pesky Constitutionally-required Charter Convention was never convened.
24. On July 24, 2017, Pueblo City Council passed Ordinance No. 9146, letting Pueblo County run the elections.
25. On October 26, 2017, Johnathan Masters, a concerned Puebloan, files a Permanent Injunction in the 10th Judicial District (the local state court) against the unconstitutional Mayor referendum.
26. The same day, Masters contracted a qualified 3rd party service processor to deliver the Summons & Complaint to the City Attorney's office, located on the 3rd floor in City Hall.
27. On November 7, 2017, 52% (12,185 "yes" voters/23,570 total voters) of Pueblo City's registered voters who decided to turn out & vote (35%; 38,841 total 2017 Pueblo County voters divided by 109,595 total registered 2017 County voters), voted in favor of the criminal Mayor referendum.
28. Pueblo County did not publish any turnout rate for Pueblo City specifically, but Plaintiff guestimates a 35% turnout rate, same as the county.
29. Approximately, 18.2% (52% of 35%) of the registered voters of Pueblo City "approved" Ballot Question 2A.
30. After 21 days expired, on November 16, 2017, Plaintiff filed a Motion to Entry of Default Judgment.
31. 6 days later - on November 22, 2017 - Plaintiff receives Defendant's Response.
32. November 22, 2017 is also when Jill Mattoon recused herself from this case for "conflict of interest or potential conflict of interest".
33. On December 7, 2017, Plaintiff filed these pleadings.
Motion for Entry of Default Judgment
34. Mr. Daniel C. Kogovsek received the Summons & Complaint on the same day it was filed - October 26, 2017 - but Mr. Kogovsek did not file a Response in the 21 day window allotted via CRCP 6-a-1 (the "Time Computation" section) & CRCP 12-a-1 ("A defendant shall file his answer or other response within 21 days after the service of the summons and complaint.")
35. The 21st day fell on November 16, 2017, and Defendant filed his "Verified Response" the day after, on November 17, 2017, one day too late, 22 days after receiving the Summons & Complaint.
36. The City Attorney, the legal representative of the government of Pueblo City, had the Summons & Complaint in hand, with Plaintiff's phone number & address stamped on them.
37. Defendant knew about the lawsuit, & had plenty of time to take this seriously, but chose not to do so.
38. The Motion & Order is included.
The City Manager's Office Cannot Be Dissolved By The Criminal Mayor Referendum
39. Charters for Home Rule Cities in Colorado are Constitutionally-protected (Pueblo Aircraft Service, Inc. v. City of Pueblo 1980).
40. Home Rule cities are protected under the current Colorado Constitution of 1876, per Colorado's 20th Amendment, which not only gives the local municipal corporate government "Constitutional standing", but per Justice Dennison, power "as broad as possible within the scope of a Republican form of government of the State". (Fort Collins v P.U.C. (1921)).
41. The government of Pueblo City has the power of "state action", i.e. the monopoly of force.
42. Plaintiff & Defendant agree that local concerns are governed by local Charter & Ordinance (Pueblo controls Pueblo), and that statewide concerns are governed by State statutes (Denver controls Colorado, including Pueblo).
43. Plaintiff & Defendant both agree that when Denver's not in Pueblo, Pueblo controls Pueblo.
44. Denver controls Pueblo, Colorado in matters of statewide concern, & for local matters, such as Election & Recall (Laverty v. Straub 1943; International Brotherhood of Police Officers Local 127 v. Denver 1974; Bernzen v. City of Boulder 1974), Pueblo's government controls Pueblo City.
45. Plaintiff & Defendant disagree on which governing body controls mixed statewide/local concerns: Plaintiff leans towards local control, & Defendant leans towards state control; Case law varies per individual basis.
46. From a strict constructivist perspective, Section 1-2 of Pueblo's Charter mandates that a Charter Convention must be called up before the form of Pueblo City's municipal corporate government is changed, whether it was just the Judicial, Legislative, or Executive Branch, or all three.
47. The full text of the legendary Section 1-2 of Pueblo's current operating document - the Charter of 1954 - the year "The 7 Year Itch" hit movie screens in Pueblo:
"Section 1-2. Form of Government - The Municipal Government provided by this Charter shall be known as the "Council-Manager Government," and shall not be changed except by Charter Convention upon majority vote of the qualified voters. Pursuant to its provisions and subject only to limitations imposed by the State Constitution and by this Charter, all powers of the City shall be vested in an elective council."
48. If Ballot Question 2A is allowed to stand, then the Council-Manager form of government, via the dissolution of the City Manager's office and the enforcement of dozens of other Amendments, will cease to exist. Instead of a Council-Manager form of government, Pueblo would have a "Strong Mayor" form of government. That contradicts the 3rd sentence of the 1st page of Pueblo City's central governing document, which dictates that the "municipal corporation" that is known as "The City of Pueblo" must forever & ever, always & forever, from here until eternity, be the "Council-Manager Government", and "shall not be changed except by Charter Convention upon majority vote of the qualified voters."
49. One could misinterpret the "majority vote of the qualified voters" part of Section 1-2 as meaning only those select few in government, but that's incorrect.
50. The "majority vote of the qualified voters" are the masses, the public, the voters who are properly registered to vote, & the Pueblo City voters who are properly registered to vote never voted for a Charter Convention.
51. Until the majority of Pueblo's registered voters vote for a Charter Convention, the City Manager's office cannot be dissolved.
52. Ballot Question 2A is unconstitutional, so therefore, it's null & void.
Criminal Mayor Referendum Guts & Flays the Charter Convention Clause
53. Since Pueblo's 1954 City Charter doesn't specify how a Charter Convention should be rounded up, we Puebloans can organize our Charter Convention as we see fit, or by using the State Statutes on "Charter Commissions".
54. Pueblo City has constitutionally-protected authority to handle "all matters" pertaining to her own elections, "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.)), the strongest plank of the list of 8 constitutional home rule powers protected by Colorado’s 20th Amendment.
55. There's an inherent logic behind the state Charter Commission laws, but they're scattered all about in C.R.S. Title 31, Article 2.
56. In order for a Charter Commission to be corralled together, from start to finish, Colorado Revised Statutes calls for a total of 3 Elections: 1) A Charter Convention election (CRS §31-2-210(2)(b)); 2) Charter Delegate election (CRS §31‐2‐204(2)), &; 3) Charter election itself (CRS §31-2-207). [Colorado Municipal League, 2017].
57. If the Charter election fails, then a second round can be repeated (CRS §31-2-206).
58. The only two available legal options for Pueblo City to conform to the constitutionally-protected Section 1-2 are: 1) Charter Convention, or; 2) Charter Commission. And that's it.
59. However, neither a Charter Convention, nor a Charter Commission were ever convened, so heretofore, the government of Pueblo City cannot change.
60. Not surprisingly, Ballot Question 2A gutted & flayed the very Charter Convention clause the Defendant violated in Section 1-2.
61. Without that Charter Convention clause in Section 1-2, there's zero incentive for Pueblo City to ever have a Charter Convention, or Charter Commission, in order to change our form of government.
62. If Ballot Question No. 2A (2017) stands, Pueblo City will set a precedent of changing her form of government for future generations by mere ballot measure.
Criminal Mayor Referendum Changes All 3 Branches of Government
63. Plaintiff offers a Constitutional argument, so therefore, only a counter-Constitutional argument can prevail against Plaintiff's claim.
64. The government of Pueblo City needs to prove that referendums are Constitutionally-protected in their plenary absoluteness, so much so, that they supersede the authority of Constitutionally-protected Charter Convention clauses.
65. The government of Pueblo City did not prove that.
66. Colorado Revised (State) Statute 31-2-210(1)(b) declares:
"(1) Proceedings to amend a home rule charter may be initiated by either of the following methods: (b) An ordinance adopted by the governing body submitting the proposed amendment to a vote of the registered electors of the municipality. Such ordinance shall also adopt a ballot title for the proposed amendment."
67. While CRS 31-2-210(1)(b) is specific to home rule charters, it merely guarantees the power of City Council to propose a Charter Amendment, not to Gut & Flay the entire City Manager system of government.
68. 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" 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)).
69. Replacing the Charter is much different than Amending the Charter. Amending the Charter is changing this one law or maybe those two. Ballot Question 2A is a 70+ Amendment, 21-page Hurricane, which changes everything.
70. Ballot Question 2A changes all 3 branches of government: 1) The Executive Branch gains nominating & firing power over the Judicial Branch; 2) The Legislative Branch loses their hiring & firing power over both the Executive & the Judicial Branch, &; 3) The Judicial Branch will have less lawsuits against the government of Pueblo City because of the new "immunity for city employees" clause in Section 6-4.
71. Ballot Question 2A is blatantly unconstitutional on it's face, so therefore, it's null & void.
The Facts of the Case
72. On June 12, 2017, Councilman Ed Brown introduced the so-called "Strong Mayor" form of government ballot referendum to Pueblo's City Council.
73. 14 days later, on June 26, 2017, just before 9pm, at a regular City Council meeting, Pueblo City Council - Steve Nawrocki (chair), Ray Aguilera, Ed Brown, Chris Nicoll, Bob Schilling, Lori Winner, & Larry Atencio - unanimously passed Ordinance No. 9134, the unconstitutional Mayor referendum, into law. (1:44:00 - 1:59:00).
74. Steve Nawrocki, the President of City Council, warned the few citizens of Pueblo who were prepared to speak to City Council at their Public Forum: "The City Attorney is on guard watching out the policy and will alert me to lower the gavel." (9:50 - 10:02).
75. Mr. Daniel C. Kogovsek started the discussion on June 26, 2017 on the Mayor referendum with what Steve Nawrocki called a "Staff Report".
76. Mr. Kogovsek acknowledged that this "proposed charter revision" ... "would change the form of government, from "council manager" to "strong mayor council"."
77. Mr. Kogovsek advised council in his staff report that Ordinance No. 9134 "gives city council the authority to hire personnel necessary to enable the council to adequately to perform it's duties, and the council could make those hiring decisions independent of the Mayor."
78. The allure of new powers for Pueblo's City Council to be able to hire & fire a few staff members as aides for themselves helped to convince Pueblo's City Council to cede their hiring & firing authority over both the Executive & Judicial Branches.
79. In the staff report, Mr. Kogovsek made himself available to City Council "to answer any questions" about the unconstitutional Mayor referendum.
80. Mr. Kogovsek recognized that the Mayor referendum proposal contained "21 pages of changes to the current city charter".
81. Mr. Kogovsek then publicly thanked Nick Gradisar, the leader of the citizen group who proposed this Ordinance to City Council, "for working with me to get this ballot issue ready to present to the voters."
82. Mr. Kogovsek reported that "this committee" responsible for the criminal Mayor initiative "wishes to campaign for this ballot question".
83. Nick Gardisar was the only person from the public who testified in favor or against this unconstitutional Mayor referendum proposal.
84. Several times Mr. Nick Gardisar testified that the current "council-manager form of government" was going to change.
85. "This is not 1954," Mr. Gardisar said, indicating that the 1954 Charter was inadequate for 2017.
86. Mr. Gardisar testified that he believed that we the citizens of Pueblo City could solve our problems better "than the current system of government" with "an elected mayor whose been anointed by the citizens".
87. Steve Nawrocki called for the motion, got it "seconded", and then Nawrocki opened the floor back up to Chris Nicoll.
88. Councilman Chris Nicoll asked staff & council in attendance of that June 26, 2017 meeting about the fairness of adopting the "Strong Mayor" committee's proposal over the "Weak Mayor" committee's proposal.
89. Councilman Ray Aguilera agreed with Chris Nicoll about treating "both groups" fairly.
90. Councilman Nicoll specifically asked Mr. Kogovsek, as if Kogovsek's job was to advise Nicoll on legal matters, "My question is a legal one. How does that work?", regarding the problems with having two or more "change the form of government" ballot referendums or initiatives on the general election ballot.
91. Mr. Kogovsek responded to Nicoll's question with: "The Drafters of the City Charter had an answer back in 1954. What the Charter says is that, whoever gets the most votes, wins. So if Strong Mayor gets more votes than the faciliative (sic) Mayor, then the Strong Mayor would win, & vice versa."
92. President Nawrocki ordered Mr. Kogovsek to "explain to me how they both could lose."
93. Mr. Kogovsek reassured Mr. Nawrocki that it was possible for 2 "change the form of government" ballot questions on the general election ballot to simultaneously lose.
94. Steve Nawrocki showed Mr. Kogovsek his appreciation by thanking Pueblo City's top legal advisor: "Thank you Counselor," President Steve Nawrocki said to Mr. Kogovsek.
95. Right before Steve Nawrocki called for the vote, his final thoughts on the "Strong Mayor" ballot question was: "I've had people in the community ask about [multiple "change form of government" ballot measures] because now they know there's another group considering [to introduce a proposal to city council], and there are some people who prefer the type of government we have right now, so I think it's important, and of course as this evolves, we'll have to give more information to the public, but the majority of this council did give direction to the city staff, city attorney, to move this forward and put on the ballot so I will support it tonight, so if there's no other discussion, I would ask you to proceed with the action."
96. All 7 Pueblo City Councilors unanimously voted for the criminal Mayor referendum.
97. On June 26, 2017, Mr. Kogovsek never mentioned Section 1-2, nor did Mr. Kogovsek warn City Council about the Mayor referendum as being "unconstitutional", "illegal", nor "criminal".
On Defendant's Procedural Complaints
98. Of the 6 objections Defendant could have mentioned in their Verified Response via CRCP 12(b), they only choose 4 of the 6 available options, implying that the Defendant felt that Plaintiff has "jurisdiction over the person" CRCP 12-b-2, & that the process was sufficient CRCP 12-b-3.
99. The Plaintiff himself did not serve the Defendant any papers on October 26, 2017, as the Defendant incorrectly alleges.
100. Personal hand-delivered service is better than mail service because it's faster, and because personal hand-delivered service guarantees that the correct party received the correct papers, whereas mail service, especially without a return signature, while reliable 95% of the time, isn't as certain.
101. Defendant alleges that the service was insufficient via CRCP 12-b-4, because it failed to comply with CRCP 4-e-6.
102. Plaintiff served Defendant the Summons & Complaint properly via CRCP 5-b-2-ii [5-b-(2) Service under C.R.C.P. 5(a) is made by: (A) "Delivering a copy to the person served by: (i) handing it to the person, or: (ii) leaving it at the person’s office with a clerk or other person in charge, or if no one is in charge, leaving it in a conspicuous place in the office"] and via CRCP 5-b-4-A [(4) "Upon any form of corporation,..."; (A) "An officer of any form of entity having officers, or that officer’s secretary or assistant;"].
103. Defendant further alleges Plaintiff has a "Lack of Jurisdiction over Subject Matter" (CRCP 12-b-1) because the "Government of Pueblo City" is not a legal entity.
104. Plaintiff defined "The Government of Pueblo City" as "the City Council, City Manager, the City Clerk," & "the City Lawyer".
105. On the City of Pueblo's website, the municipal corporation lists specifically those whom the City Attorney represents: "City Council, City Manager and City departments".
106. The City of Pueblo's website makes it painfully clear that Mr. Dan Kogovsek does not work for the "citizens of the City on an individual basis".
107. Clearly, "the government of Pueblo City" is "the City of Pueblo, a Colorado municipal corporation", & vice versa.
108. Defendant alleges "Mootness", saying that "Court cannot enjoin an election that has already occurred" (W-470 Concerned Citizens v. W-470 Highway Authority (1990)).
109. Plaintiff filed the Permanent Injunction against Ballot Question 2A on October 26, 2017, 12 days prior to the November 7, 2017 general election, & served Defendant a Summons & Complaint on the same day.
110. Defendant invokes CRCP 12-b-5 - "Failure to State a Claim Upon Which Relief Can be Granted" - claiming that Plaintiff, a citizen, isn't allowed to file a complaint against the government of Pueblo, without specifying a claim upon which relief can be granted.
111. Plaintiff, as a citizen, represents all law-abiding citizens in the City of Pueblo, whereas Mr. Kogovsek represents the government of the City of Pueblo.
112. Pueblo City Council put an illegal referendum question on the November general election ballot, a ballot measure which will affect Johnathan Masters, and over 100,000 other citizens.
113. The City Attorney is obligated by Charter to defend the City of Pueblo from all lawsuits (Section 6-2).
114. Of course Plaintiff can bring forth a claim against the Defendant.
115. An unconstitutional ruling & Permanent Injunction on Ballot Question No. 2A (aka Ordinance 9134) is the Relief.
116. The last objection Defendant has over procedure is "Failure to Join a Party Under CRCP 19" (CRCP 12-b-6), where the City Attorney claims that Plaintiff forgot to mention Gilbert Ortiz, the Pueblo County Clerk & Recorder, in Plaintiff's claim.
117. Mr. Kogovsek is Pueblo's City Attorney.
118. The important legal question Plaintiff is asking the 10th Judicial Branch to adjudicate, can be summed up in with this question: "Can a local government in Colorado put a ballot measure on the ballot which is blatantly unconstitutional?"
119. Pueblo County ran Pueblo City's elections in 2017 (Ordinance No. 9146), as they have for generations.
120. Plaintiff doesn't believe that the responsibility of the criminal Mayor referendum being on the general election ballot falls on the Pueblo County Clerk.
121. Pueblo's County Clerk is a non-biased 3rd party, a conduit, a medium, an administrator, behaving in accordance with the will of the government of the City of Pueblo.
122. The government of the City of Pueblo are the ones who decided to put the blatantly unconstitutional Mayor referendum on the general election ballot.
123. Pueblo's County Clerk would have put the ballot question "Are you in favor of a Charter Convention?" on the general election ballot also - the proper legal channel for the City of Pueblo to change her government - had the government of Pueblo City ordered it.
124. The head legal counsel to the government of the City of Pueblo didn't even contradict Plaintiff's constitutional argument.
125. Considering Defendant only offered an incorrect interpretation of a lone State statute to nullify Section 1-2, Plaintiff sees why the Defendant would want to protest this case on flimsy technicality issues too.
126. Because the government of Pueblo City has no case.
Conclusion
127. Rules I can live with. Fascism I cannot.
128. Without a Charter Convention (or "Charter Commission"), then, Constitutionally, the City of Pueblo cannot change her form of government.
129. Can a local government in Colorado put a ballot measure on the ballot which is blatantly unconstitutional?
130. Plaintiff believes a "Concentration Camps for Jews" or "Ban Free Speech" or "Dissolve the 10th Judicial Branch" ballot question, or any other blatantly illegal & unconstitutional matters, shouldn't be allowed on the ballot in the first place.
131. Plaintiff believes that illegal, criminal, unconstitutional "Concentration Camps for Jews"-like ballot questions should be nipped in the bud.
132. This question is a matter of public policy, a vital matter of public policy which needs to be adjudicated, for the short-term, and for the precedent it sets for future generations.
133. In the "Webb v. The City of Black Hawk (2013)" case referenced by Defendant, the State courts decided to go with State statutes, regarding banning bicycles on specific streets, over local home rule ordinances. The government of the City of Black Hawk banned all bicycles off of one particular street. The state statute said that in order to ban bicycles on any street in Colorado, the government must make sure there are alternative bike lanes first.
134. The state statute was the more reasonable law. The state statutes were more well-thought out, & they had an inherent logic that the government of the City of Black Hawk hadn't considered.
135. Pueblo City's Charter Convention clause & its purpose is on my side. The Charter Convention clause was included to guarantee a high threshold for changing Pueblo City's "Council-Manager" system of government.
136. A Charter Convention also invites the public to participate. A brand spanking new Charter constructed out in the open, with 9 to 21 delegates from the community elected to write the Charter, with the voting public giving the final approval of the new document, will give birth to a much better system of government than a "skinny Charter" that was decided by private interests in the offices of the Chamber of Commerce.
137. Ballot Question 2A was written as an electoral coup d'etat: to simultaneously dissolve the office of the City Manager & the entire Council-Manager system, AND to by-pass the Charter Convention requirement all together.
138. Defendant admits that going through the proper legal channel of changing our government via Charter Conventions is more "cumbersome".
139. If Ballot Question 2A, an illegal & unconstitutional ballot question, is enforced, then the heart, brain, hand, & spirit of that Revolutionary & Progressive 1954 Charter has been ripped out, with only an empty hollowed out husk left behind, left for dead.
140. Ballot Question 2A was unconstitutional the moment it was dreamed up. Ballot Question 2A was unconstitutional in 2009. Ballot Question 2A was unconstitutional on June 11, 2017 when Ed Brown introduced it. Ballot Question 2A was unconstitutional on June 26, 2017 when Pueblo's 7-member City Council unanimously voted for it (after Mr. Kogovsek gave a mostly neutral "staff report" on the Strong Mayor bombshell to City Council). Ballot Question 2A was unconstitutional when I filed this case on October 26, 2017, 12 full days prior to the general municipal election. Ballot Question 2A was unconstitutional when approximately 18% of Pueblo City's registered voters voted to approve Ballot Question No. 2A on November 7, 2017.
141. Ballot Question 2A was unconstitutional yesterday. Ballot Question 2A is unconstitutional today. And Ballot Question 2A will be unconstitutional tomorrow.
142. Constitutions & the Rule of Law are vital to democracy. There's some folks who believe there are no rules, only rulers, only hierarchical totalitarian fascism, who use their authoritarianism to divide & conquer. That's not law & order, nor democracy, nor fair. That's fascist anarchy.
143. The nice thing about having a common city constitution - a City Charter - is that it doesn't matter who reads the Charter, the rules stay the same, and apply to everybody equally.
144. Rules to a Chess game ensure that the game being played is fair, so that the best player wins, not the player who makes up their own rules as they go.
145. All of the citizens of Pueblo City can read our 1954 Charter, and we can all be on the same page. All Puebloans would have the full & complete understanding of how the 3 branches of government are separated for Pueblo City, what department does what, where their roles are in our democracy, etc., and we would all be on the same pages, literally, on the same Constitutional pages, no matter how rich or powerful, or poor & powerless one is.
Rules I can live with. Fascism I cannot.
Respectfully submitted this 7th day of December, 2017,
Johnathan Masters
Super Citizen, Pueblo City
Court Address: 501 N. Elizabeth St., Pueblo CO 81003
JOHNATHAN MASTERS, CITIZEN
v.
GOVERNMENT OF PUEBLO CITY
Case Number: 2017 CV 93
Division 502
PLAINTIFF'S VERIFIED REPLY TO RESPONSE OF COMPLAINT FOR PERMANENT INJUNCTION RELIEF AND MOTION
Defendant Offers Fictitious Statute As Defense
1. Per the response of the legal counsel for the Colorado municipal corporation, The City of Pueblo, the government of the City of Pueblo, herein "Defendant", has no case.
2. Plaintiff's entire case is based upon Section 1-2 of the City of Pueblo's City Charter.
3. Section 1-2 is the 3rd sentence on page 1 in Pueblo City's central governing document.
4. Plaintiff alleges that the government of Pueblo City put a ballot measure on the general election ballot which is blatantly unconstitutional.
5. Section 1-2 gives Pueblo City the clearly expressed constitutional power to change her government whenever & however she pleases, as long as a "Charter Convention" was convened, and the majority of the voters approved the new Charter that the Charter Convention churned out.
6. Not referendums, nor Initiatives, can overrule that which is Constitutional. "Neither an act of legislature, referred or unreferred, nor an initiated law, can recall any power or privilege granted by the constitution." (Fort Collins v. Public Utilities Commission of Colorado, 1921).
7. The only legal argument that the Defendant offered to contradict Plaintiff's assertion that the government of Pueblo City must abide by her own Section 1-2 was by the single State statute C.R.S. 32-2-210(1)(b) being in "direct conflict" with it.
8. Unfortunately, no Title 32, Article 2 laws exist in the State of Colorado's legal code.
9. According to 2017 C.R.S. laws, Title 32 covers "Special Districts", and Title 32, Article 2 specifically covers "Metropolitan Recreation Districts", and those laws, numbering 32-2-101 to 32-2-134, have been "(Repealed)".
10. There are no further laws past C.R.S 32-2-134, therefore, C.R.S. 32-2-210(1)(b) is fictitious.
11. While it appears that the Defendant may be creating fictional laws out of thin air in order to cover up the municipal corporation's involvement with the unconstitutional Mayor referendum, since this case is a matter of public policy, information & logic leads me to believe that the Defendant actually meant CRS 31-2-210(1)(b), not CRS 32-2-210(1)(b).
12. Plaintiff's theory of government is that all governments in the United States of America, and laws passed by those governments, get their legal authority from their respective written Constitutions.
13. The "Masters theory of government", self-named by & after Plaintiff, is that all Puebloans live in a Constitutional Republic, which upholds the Rule of Law, and is broken up into 3 co-equal & independent branches of government, in order to prevent tyranny.
14. All laws for Pueblo City specifically originate from the 1789 US Charter, the 1876 Colorado Charter, & the 1954 Pueblo Constitution - 3 Constitutions, local, state, & federal - always in tandem with each other, forming the solid bedrock foundation of the fundamental laws that a peaceful & prosperous American-Coloradoan-Puebloan civil society needs to exist.
Some History
15. In 1911, after months of weekly columns supporting a Charter Convention from the progressive Republicans who ran the Pueblo Chieftain, Pueblo City became free & independent when she first chartered herself into existence.
16. The State of Colorado would catch up to the Home Rule movement 1 year later, adding the Home Rule Amendment into Colorado's Constitution in 1912.
17. Prior to 1911, Pueblo City had 23 Mayors (several non-consecutive), but without a Charter, existed in name only.
18. The 1912 Home Rule Amendment - Article 6 of Section XX of Colorado's current 1876 Constitution - specifically protects Pueblo City's Charter by name, as well the city charters of Denver, Colorado Springs, & Grand Junction. (Article 20, Section 6, Clause 7).
19. In 1954, Pueblo City rewrote her own Charter, via Charter Convention, and changed her former "Commission style of government" into a "City Manager style of government".
20. In that brand spanking new 1954 Charter, the very Charter Pueblo City has been operating under for the last 63 years -- Section 1-2 -- the 3rd sentence on page 1 of Pueblo City's Constitution, mandates that in order for one to change Pueblo City's "City Manager form of government", a Charter Convention must be convened.
21. On June 11, 2017, Councilman Ed Brown introduced the unconstitutional Mayor referendum proposal to Pueblo City Council.
22. On June 26, 2017, Pueblo's City Council unanimously votes in favor of the unconstitutional Mayor referendum.
23. A proposal to change Pueblo City's "form of government" was placed on the general election ballot in 2017, but that pesky Constitutionally-required Charter Convention was never convened.
24. On July 24, 2017, Pueblo City Council passed Ordinance No. 9146, letting Pueblo County run the elections.
25. On October 26, 2017, Johnathan Masters, a concerned Puebloan, files a Permanent Injunction in the 10th Judicial District (the local state court) against the unconstitutional Mayor referendum.
26. The same day, Masters contracted a qualified 3rd party service processor to deliver the Summons & Complaint to the City Attorney's office, located on the 3rd floor in City Hall.
27. On November 7, 2017, 52% (12,185 "yes" voters/23,570 total voters) of Pueblo City's registered voters who decided to turn out & vote (35%; 38,841 total 2017 Pueblo County voters divided by 109,595 total registered 2017 County voters), voted in favor of the criminal Mayor referendum.
28. Pueblo County did not publish any turnout rate for Pueblo City specifically, but Plaintiff guestimates a 35% turnout rate, same as the county.
29. Approximately, 18.2% (52% of 35%) of the registered voters of Pueblo City "approved" Ballot Question 2A.
30. After 21 days expired, on November 16, 2017, Plaintiff filed a Motion to Entry of Default Judgment.
31. 6 days later - on November 22, 2017 - Plaintiff receives Defendant's Response.
32. November 22, 2017 is also when Jill Mattoon recused herself from this case for "conflict of interest or potential conflict of interest".
33. On December 7, 2017, Plaintiff filed these pleadings.
Motion for Entry of Default Judgment
34. Mr. Daniel C. Kogovsek received the Summons & Complaint on the same day it was filed - October 26, 2017 - but Mr. Kogovsek did not file a Response in the 21 day window allotted via CRCP 6-a-1 (the "Time Computation" section) & CRCP 12-a-1 ("A defendant shall file his answer or other response within 21 days after the service of the summons and complaint.")
35. The 21st day fell on November 16, 2017, and Defendant filed his "Verified Response" the day after, on November 17, 2017, one day too late, 22 days after receiving the Summons & Complaint.
36. The City Attorney, the legal representative of the government of Pueblo City, had the Summons & Complaint in hand, with Plaintiff's phone number & address stamped on them.
37. Defendant knew about the lawsuit, & had plenty of time to take this seriously, but chose not to do so.
38. The Motion & Order is included.
The City Manager's Office Cannot Be Dissolved By The Criminal Mayor Referendum
39. Charters for Home Rule Cities in Colorado are Constitutionally-protected (Pueblo Aircraft Service, Inc. v. City of Pueblo 1980).
40. Home Rule cities are protected under the current Colorado Constitution of 1876, per Colorado's 20th Amendment, which not only gives the local municipal corporate government "Constitutional standing", but per Justice Dennison, power "as broad as possible within the scope of a Republican form of government of the State". (Fort Collins v P.U.C. (1921)).
41. The government of Pueblo City has the power of "state action", i.e. the monopoly of force.
42. Plaintiff & Defendant agree that local concerns are governed by local Charter & Ordinance (Pueblo controls Pueblo), and that statewide concerns are governed by State statutes (Denver controls Colorado, including Pueblo).
43. Plaintiff & Defendant both agree that when Denver's not in Pueblo, Pueblo controls Pueblo.
44. Denver controls Pueblo, Colorado in matters of statewide concern, & for local matters, such as Election & Recall (Laverty v. Straub 1943; International Brotherhood of Police Officers Local 127 v. Denver 1974; Bernzen v. City of Boulder 1974), Pueblo's government controls Pueblo City.
45. Plaintiff & Defendant disagree on which governing body controls mixed statewide/local concerns: Plaintiff leans towards local control, & Defendant leans towards state control; Case law varies per individual basis.
46. From a strict constructivist perspective, Section 1-2 of Pueblo's Charter mandates that a Charter Convention must be called up before the form of Pueblo City's municipal corporate government is changed, whether it was just the Judicial, Legislative, or Executive Branch, or all three.
47. The full text of the legendary Section 1-2 of Pueblo's current operating document - the Charter of 1954 - the year "The 7 Year Itch" hit movie screens in Pueblo:
"Section 1-2. Form of Government - The Municipal Government provided by this Charter shall be known as the "Council-Manager Government," and shall not be changed except by Charter Convention upon majority vote of the qualified voters. Pursuant to its provisions and subject only to limitations imposed by the State Constitution and by this Charter, all powers of the City shall be vested in an elective council."
48. If Ballot Question 2A is allowed to stand, then the Council-Manager form of government, via the dissolution of the City Manager's office and the enforcement of dozens of other Amendments, will cease to exist. Instead of a Council-Manager form of government, Pueblo would have a "Strong Mayor" form of government. That contradicts the 3rd sentence of the 1st page of Pueblo City's central governing document, which dictates that the "municipal corporation" that is known as "The City of Pueblo" must forever & ever, always & forever, from here until eternity, be the "Council-Manager Government", and "shall not be changed except by Charter Convention upon majority vote of the qualified voters."
49. One could misinterpret the "majority vote of the qualified voters" part of Section 1-2 as meaning only those select few in government, but that's incorrect.
50. The "majority vote of the qualified voters" are the masses, the public, the voters who are properly registered to vote, & the Pueblo City voters who are properly registered to vote never voted for a Charter Convention.
51. Until the majority of Pueblo's registered voters vote for a Charter Convention, the City Manager's office cannot be dissolved.
52. Ballot Question 2A is unconstitutional, so therefore, it's null & void.
Criminal Mayor Referendum Guts & Flays the Charter Convention Clause
53. Since Pueblo's 1954 City Charter doesn't specify how a Charter Convention should be rounded up, we Puebloans can organize our Charter Convention as we see fit, or by using the State Statutes on "Charter Commissions".
54. Pueblo City has constitutionally-protected authority to handle "all matters" pertaining to her own elections, "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.)), the strongest plank of the list of 8 constitutional home rule powers protected by Colorado’s 20th Amendment.
55. There's an inherent logic behind the state Charter Commission laws, but they're scattered all about in C.R.S. Title 31, Article 2.
56. In order for a Charter Commission to be corralled together, from start to finish, Colorado Revised Statutes calls for a total of 3 Elections: 1) A Charter Convention election (CRS §31-2-210(2)(b)); 2) Charter Delegate election (CRS §31‐2‐204(2)), &; 3) Charter election itself (CRS §31-2-207). [Colorado Municipal League, 2017].
57. If the Charter election fails, then a second round can be repeated (CRS §31-2-206).
58. The only two available legal options for Pueblo City to conform to the constitutionally-protected Section 1-2 are: 1) Charter Convention, or; 2) Charter Commission. And that's it.
59. However, neither a Charter Convention, nor a Charter Commission were ever convened, so heretofore, the government of Pueblo City cannot change.
60. Not surprisingly, Ballot Question 2A gutted & flayed the very Charter Convention clause the Defendant violated in Section 1-2.
61. Without that Charter Convention clause in Section 1-2, there's zero incentive for Pueblo City to ever have a Charter Convention, or Charter Commission, in order to change our form of government.
62. If Ballot Question No. 2A (2017) stands, Pueblo City will set a precedent of changing her form of government for future generations by mere ballot measure.
Criminal Mayor Referendum Changes All 3 Branches of Government
63. Plaintiff offers a Constitutional argument, so therefore, only a counter-Constitutional argument can prevail against Plaintiff's claim.
64. The government of Pueblo City needs to prove that referendums are Constitutionally-protected in their plenary absoluteness, so much so, that they supersede the authority of Constitutionally-protected Charter Convention clauses.
65. The government of Pueblo City did not prove that.
66. Colorado Revised (State) Statute 31-2-210(1)(b) declares:
"(1) Proceedings to amend a home rule charter may be initiated by either of the following methods: (b) An ordinance adopted by the governing body submitting the proposed amendment to a vote of the registered electors of the municipality. Such ordinance shall also adopt a ballot title for the proposed amendment."
67. While CRS 31-2-210(1)(b) is specific to home rule charters, it merely guarantees the power of City Council to propose a Charter Amendment, not to Gut & Flay the entire City Manager system of government.
68. 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" 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)).
69. Replacing the Charter is much different than Amending the Charter. Amending the Charter is changing this one law or maybe those two. Ballot Question 2A is a 70+ Amendment, 21-page Hurricane, which changes everything.
70. Ballot Question 2A changes all 3 branches of government: 1) The Executive Branch gains nominating & firing power over the Judicial Branch; 2) The Legislative Branch loses their hiring & firing power over both the Executive & the Judicial Branch, &; 3) The Judicial Branch will have less lawsuits against the government of Pueblo City because of the new "immunity for city employees" clause in Section 6-4.
71. Ballot Question 2A is blatantly unconstitutional on it's face, so therefore, it's null & void.
The Facts of the Case
72. On June 12, 2017, Councilman Ed Brown introduced the so-called "Strong Mayor" form of government ballot referendum to Pueblo's City Council.
73. 14 days later, on June 26, 2017, just before 9pm, at a regular City Council meeting, Pueblo City Council - Steve Nawrocki (chair), Ray Aguilera, Ed Brown, Chris Nicoll, Bob Schilling, Lori Winner, & Larry Atencio - unanimously passed Ordinance No. 9134, the unconstitutional Mayor referendum, into law. (1:44:00 - 1:59:00).
74. Steve Nawrocki, the President of City Council, warned the few citizens of Pueblo who were prepared to speak to City Council at their Public Forum: "The City Attorney is on guard watching out the policy and will alert me to lower the gavel." (9:50 - 10:02).
75. Mr. Daniel C. Kogovsek started the discussion on June 26, 2017 on the Mayor referendum with what Steve Nawrocki called a "Staff Report".
76. Mr. Kogovsek acknowledged that this "proposed charter revision" ... "would change the form of government, from "council manager" to "strong mayor council"."
77. Mr. Kogovsek advised council in his staff report that Ordinance No. 9134 "gives city council the authority to hire personnel necessary to enable the council to adequately to perform it's duties, and the council could make those hiring decisions independent of the Mayor."
78. The allure of new powers for Pueblo's City Council to be able to hire & fire a few staff members as aides for themselves helped to convince Pueblo's City Council to cede their hiring & firing authority over both the Executive & Judicial Branches.
79. In the staff report, Mr. Kogovsek made himself available to City Council "to answer any questions" about the unconstitutional Mayor referendum.
80. Mr. Kogovsek recognized that the Mayor referendum proposal contained "21 pages of changes to the current city charter".
81. Mr. Kogovsek then publicly thanked Nick Gradisar, the leader of the citizen group who proposed this Ordinance to City Council, "for working with me to get this ballot issue ready to present to the voters."
82. Mr. Kogovsek reported that "this committee" responsible for the criminal Mayor initiative "wishes to campaign for this ballot question".
83. Nick Gardisar was the only person from the public who testified in favor or against this unconstitutional Mayor referendum proposal.
84. Several times Mr. Nick Gardisar testified that the current "council-manager form of government" was going to change.
85. "This is not 1954," Mr. Gardisar said, indicating that the 1954 Charter was inadequate for 2017.
86. Mr. Gardisar testified that he believed that we the citizens of Pueblo City could solve our problems better "than the current system of government" with "an elected mayor whose been anointed by the citizens".
87. Steve Nawrocki called for the motion, got it "seconded", and then Nawrocki opened the floor back up to Chris Nicoll.
88. Councilman Chris Nicoll asked staff & council in attendance of that June 26, 2017 meeting about the fairness of adopting the "Strong Mayor" committee's proposal over the "Weak Mayor" committee's proposal.
89. Councilman Ray Aguilera agreed with Chris Nicoll about treating "both groups" fairly.
90. Councilman Nicoll specifically asked Mr. Kogovsek, as if Kogovsek's job was to advise Nicoll on legal matters, "My question is a legal one. How does that work?", regarding the problems with having two or more "change the form of government" ballot referendums or initiatives on the general election ballot.
91. Mr. Kogovsek responded to Nicoll's question with: "The Drafters of the City Charter had an answer back in 1954. What the Charter says is that, whoever gets the most votes, wins. So if Strong Mayor gets more votes than the faciliative (sic) Mayor, then the Strong Mayor would win, & vice versa."
92. President Nawrocki ordered Mr. Kogovsek to "explain to me how they both could lose."
93. Mr. Kogovsek reassured Mr. Nawrocki that it was possible for 2 "change the form of government" ballot questions on the general election ballot to simultaneously lose.
94. Steve Nawrocki showed Mr. Kogovsek his appreciation by thanking Pueblo City's top legal advisor: "Thank you Counselor," President Steve Nawrocki said to Mr. Kogovsek.
95. Right before Steve Nawrocki called for the vote, his final thoughts on the "Strong Mayor" ballot question was: "I've had people in the community ask about [multiple "change form of government" ballot measures] because now they know there's another group considering [to introduce a proposal to city council], and there are some people who prefer the type of government we have right now, so I think it's important, and of course as this evolves, we'll have to give more information to the public, but the majority of this council did give direction to the city staff, city attorney, to move this forward and put on the ballot so I will support it tonight, so if there's no other discussion, I would ask you to proceed with the action."
96. All 7 Pueblo City Councilors unanimously voted for the criminal Mayor referendum.
97. On June 26, 2017, Mr. Kogovsek never mentioned Section 1-2, nor did Mr. Kogovsek warn City Council about the Mayor referendum as being "unconstitutional", "illegal", nor "criminal".
On Defendant's Procedural Complaints
98. Of the 6 objections Defendant could have mentioned in their Verified Response via CRCP 12(b), they only choose 4 of the 6 available options, implying that the Defendant felt that Plaintiff has "jurisdiction over the person" CRCP 12-b-2, & that the process was sufficient CRCP 12-b-3.
99. The Plaintiff himself did not serve the Defendant any papers on October 26, 2017, as the Defendant incorrectly alleges.
100. Personal hand-delivered service is better than mail service because it's faster, and because personal hand-delivered service guarantees that the correct party received the correct papers, whereas mail service, especially without a return signature, while reliable 95% of the time, isn't as certain.
101. Defendant alleges that the service was insufficient via CRCP 12-b-4, because it failed to comply with CRCP 4-e-6.
102. Plaintiff served Defendant the Summons & Complaint properly via CRCP 5-b-2-ii [5-b-(2) Service under C.R.C.P. 5(a) is made by: (A) "Delivering a copy to the person served by: (i) handing it to the person, or: (ii) leaving it at the person’s office with a clerk or other person in charge, or if no one is in charge, leaving it in a conspicuous place in the office"] and via CRCP 5-b-4-A [(4) "Upon any form of corporation,..."; (A) "An officer of any form of entity having officers, or that officer’s secretary or assistant;"].
103. Defendant further alleges Plaintiff has a "Lack of Jurisdiction over Subject Matter" (CRCP 12-b-1) because the "Government of Pueblo City" is not a legal entity.
104. Plaintiff defined "The Government of Pueblo City" as "the City Council, City Manager, the City Clerk," & "the City Lawyer".
105. On the City of Pueblo's website, the municipal corporation lists specifically those whom the City Attorney represents: "City Council, City Manager and City departments".
106. The City of Pueblo's website makes it painfully clear that Mr. Dan Kogovsek does not work for the "citizens of the City on an individual basis".
107. Clearly, "the government of Pueblo City" is "the City of Pueblo, a Colorado municipal corporation", & vice versa.
108. Defendant alleges "Mootness", saying that "Court cannot enjoin an election that has already occurred" (W-470 Concerned Citizens v. W-470 Highway Authority (1990)).
109. Plaintiff filed the Permanent Injunction against Ballot Question 2A on October 26, 2017, 12 days prior to the November 7, 2017 general election, & served Defendant a Summons & Complaint on the same day.
110. Defendant invokes CRCP 12-b-5 - "Failure to State a Claim Upon Which Relief Can be Granted" - claiming that Plaintiff, a citizen, isn't allowed to file a complaint against the government of Pueblo, without specifying a claim upon which relief can be granted.
111. Plaintiff, as a citizen, represents all law-abiding citizens in the City of Pueblo, whereas Mr. Kogovsek represents the government of the City of Pueblo.
112. Pueblo City Council put an illegal referendum question on the November general election ballot, a ballot measure which will affect Johnathan Masters, and over 100,000 other citizens.
113. The City Attorney is obligated by Charter to defend the City of Pueblo from all lawsuits (Section 6-2).
114. Of course Plaintiff can bring forth a claim against the Defendant.
115. An unconstitutional ruling & Permanent Injunction on Ballot Question No. 2A (aka Ordinance 9134) is the Relief.
116. The last objection Defendant has over procedure is "Failure to Join a Party Under CRCP 19" (CRCP 12-b-6), where the City Attorney claims that Plaintiff forgot to mention Gilbert Ortiz, the Pueblo County Clerk & Recorder, in Plaintiff's claim.
117. Mr. Kogovsek is Pueblo's City Attorney.
118. The important legal question Plaintiff is asking the 10th Judicial Branch to adjudicate, can be summed up in with this question: "Can a local government in Colorado put a ballot measure on the ballot which is blatantly unconstitutional?"
119. Pueblo County ran Pueblo City's elections in 2017 (Ordinance No. 9146), as they have for generations.
120. Plaintiff doesn't believe that the responsibility of the criminal Mayor referendum being on the general election ballot falls on the Pueblo County Clerk.
121. Pueblo's County Clerk is a non-biased 3rd party, a conduit, a medium, an administrator, behaving in accordance with the will of the government of the City of Pueblo.
122. The government of the City of Pueblo are the ones who decided to put the blatantly unconstitutional Mayor referendum on the general election ballot.
123. Pueblo's County Clerk would have put the ballot question "Are you in favor of a Charter Convention?" on the general election ballot also - the proper legal channel for the City of Pueblo to change her government - had the government of Pueblo City ordered it.
124. The head legal counsel to the government of the City of Pueblo didn't even contradict Plaintiff's constitutional argument.
125. Considering Defendant only offered an incorrect interpretation of a lone State statute to nullify Section 1-2, Plaintiff sees why the Defendant would want to protest this case on flimsy technicality issues too.
126. Because the government of Pueblo City has no case.
Conclusion
127. Rules I can live with. Fascism I cannot.
128. Without a Charter Convention (or "Charter Commission"), then, Constitutionally, the City of Pueblo cannot change her form of government.
129. Can a local government in Colorado put a ballot measure on the ballot which is blatantly unconstitutional?
130. Plaintiff believes a "Concentration Camps for Jews" or "Ban Free Speech" or "Dissolve the 10th Judicial Branch" ballot question, or any other blatantly illegal & unconstitutional matters, shouldn't be allowed on the ballot in the first place.
131. Plaintiff believes that illegal, criminal, unconstitutional "Concentration Camps for Jews"-like ballot questions should be nipped in the bud.
132. This question is a matter of public policy, a vital matter of public policy which needs to be adjudicated, for the short-term, and for the precedent it sets for future generations.
133. In the "Webb v. The City of Black Hawk (2013)" case referenced by Defendant, the State courts decided to go with State statutes, regarding banning bicycles on specific streets, over local home rule ordinances. The government of the City of Black Hawk banned all bicycles off of one particular street. The state statute said that in order to ban bicycles on any street in Colorado, the government must make sure there are alternative bike lanes first.
134. The state statute was the more reasonable law. The state statutes were more well-thought out, & they had an inherent logic that the government of the City of Black Hawk hadn't considered.
135. Pueblo City's Charter Convention clause & its purpose is on my side. The Charter Convention clause was included to guarantee a high threshold for changing Pueblo City's "Council-Manager" system of government.
136. A Charter Convention also invites the public to participate. A brand spanking new Charter constructed out in the open, with 9 to 21 delegates from the community elected to write the Charter, with the voting public giving the final approval of the new document, will give birth to a much better system of government than a "skinny Charter" that was decided by private interests in the offices of the Chamber of Commerce.
137. Ballot Question 2A was written as an electoral coup d'etat: to simultaneously dissolve the office of the City Manager & the entire Council-Manager system, AND to by-pass the Charter Convention requirement all together.
138. Defendant admits that going through the proper legal channel of changing our government via Charter Conventions is more "cumbersome".
139. If Ballot Question 2A, an illegal & unconstitutional ballot question, is enforced, then the heart, brain, hand, & spirit of that Revolutionary & Progressive 1954 Charter has been ripped out, with only an empty hollowed out husk left behind, left for dead.
140. Ballot Question 2A was unconstitutional the moment it was dreamed up. Ballot Question 2A was unconstitutional in 2009. Ballot Question 2A was unconstitutional on June 11, 2017 when Ed Brown introduced it. Ballot Question 2A was unconstitutional on June 26, 2017 when Pueblo's 7-member City Council unanimously voted for it (after Mr. Kogovsek gave a mostly neutral "staff report" on the Strong Mayor bombshell to City Council). Ballot Question 2A was unconstitutional when I filed this case on October 26, 2017, 12 full days prior to the general municipal election. Ballot Question 2A was unconstitutional when approximately 18% of Pueblo City's registered voters voted to approve Ballot Question No. 2A on November 7, 2017.
141. Ballot Question 2A was unconstitutional yesterday. Ballot Question 2A is unconstitutional today. And Ballot Question 2A will be unconstitutional tomorrow.
142. Constitutions & the Rule of Law are vital to democracy. There's some folks who believe there are no rules, only rulers, only hierarchical totalitarian fascism, who use their authoritarianism to divide & conquer. That's not law & order, nor democracy, nor fair. That's fascist anarchy.
143. The nice thing about having a common city constitution - a City Charter - is that it doesn't matter who reads the Charter, the rules stay the same, and apply to everybody equally.
144. Rules to a Chess game ensure that the game being played is fair, so that the best player wins, not the player who makes up their own rules as they go.
145. All of the citizens of Pueblo City can read our 1954 Charter, and we can all be on the same page. All Puebloans would have the full & complete understanding of how the 3 branches of government are separated for Pueblo City, what department does what, where their roles are in our democracy, etc., and we would all be on the same pages, literally, on the same Constitutional pages, no matter how rich or powerful, or poor & powerless one is.
Rules I can live with. Fascism I cannot.
Respectfully submitted this 7th day of December, 2017,
Johnathan Masters
Super Citizen, Pueblo City
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