Judge: Despite giving wrong advice, Boulder doesn’t have to place petition on ballot

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Campaign volunteers collect signatures for Bedrooms Are For People, which seeks to loosen Boulder’s limits on unrelated persons living together. (Courtesy: Bedrooms Are For People)

Friday, Aug. 14, 2020 (Updated Saturday, Aug. 15)

Boulder does not have to place a citizen petition on the ballot despite having provided incorrect guidance on signature requirements and deadlines, a district court judge ruled Friday. The campaign behind the measure said it would appeal the decision to the Colorado Supreme Court. 

The case concerns Bedrooms Are For People, a group seeking to amend Boulder’s occupancy restrictions (rules on unrelated people living together) from fixed three- and four-person limits to ones that tie occupancy to the number of bedrooms in a home. The campaign sought to do so by changing the city’s charter, via a petition circulated this spring and summer.

Organizers turned in 7,764 signatures on July 29, having been advised by the city that they needed 4,048 by Aug. 5 to qualify for the ballot. But City Attorney Tom Carr in July said the guidelines were wrong; a correct reading of city charter rules governing elections meant that signatures were due June 5, a date which had already passed. City council later substituted its own judgement that state law applied, resulting in a June 21 deadline (also passed) and requiring 8,096 signatures.

Another group that failed to meet these criteria had an amended version of its measure — implementing direct election of Boulder’s mayor via ranked choice voting — placed on the ballot via a 7-2 vote of council Tuesday. (That was preliminary; a second and final vote will occur Sept. 1, but it is more of a formality since discussion already took place.)

Bedrooms volunteer’s have continually asked for the same treatment, but a five-member majority of council declined to put the question to voters. The campaign then sued in an attempt to compel ballot placement.

Attorneys for the group argued that organizers were reliant on the city’s guidance, which came in multiple forms and from multiple sources: the city attorney, city clerk (who is responsible for election services), written guidelines and emailed correspondence.

While “there is no doubt that the City repeatedly provided incorrect information,” Judge Andrew MacDonald wrote in his order, Bedrooms is not entitled to ballot placement because representatives of a government — including staff and elected officials — cannot overrule “the express requirement of the law,” as Mark Grueskin, Boulder’s hired outside attorney, argued Friday.

“Because the Guidelines are not an authoritative source of law on the procedures required for citizens to exercise the power of the initiative, the Court cannot direct the City to enforce the procedures contained in the Guidelines,” Judge MacDonald wrote. “The Court recognizes that is a source of great frustration to Plaintiffs and likely other citizens of Boulder.”

Sarah Huntley, speaking on behalf the city, on Friday provided the Daily Camera with a statement that Boulder was “pleased” with the ruling. Huntley declined to provide that same statement to Boulder Beat, or to answer additional questions, citing the appeal.

The court did not address the issue of whether state statutes or city charter is the ultimate authority on Boulder charter amendment petitions. The decision did include a recommendation that Boulder “consider cleaning up (city charter) language” to avoid future confusion, and MacDonald noted “the difficulty in interpreting” various sections both in his written order and at Thursday’s evidentiary hearing.  

“I can see why the plaintiffs or anyone else going through this process would look at that and say, ‘Oh the deadline is Aug. 5,'” he said Thursday. “There’s a lot of traps for the unwary. … It’s a trap for me trying to figure out what days deadlines apply. … It’s not a very easy analysis for anyone to go through, including the court.”

Because of widespread disagreement over how to interpret conflicting state and city laws, Bedrooms organizers argued that, even if they had retained a lawyer earlier in the process, they may still not have satisfied the city’s changing interpretation of the rules. They noted that Carr only began re-examining the guidelines after residents threatened to sue if Bedrooms’ petition was certified.

To expect a citizen-led, grassroots campaign to be able to figure that out is a complete barrier to direct democracy,” said Chelsea Castellano, Bedrooms co-chair and one of two plaintiffs in the suit against Boulder. “Citizens should be able to rely on the people who are supposed to serve them to provide good guidance on how to navigate through the process.

“The fact that they gave incorrect information and didn’t honor that, and that city council further didn’t honor that, is a true testament to who our government actually serves: those who have the resources to navigate through the process. That leaves a lot of people out.”

Castellano and co-chair Eric Budd believe MacDonald’s order leaves room for a successful argument before the Supreme Court. However, they are still asking — though without any real hope — that elected officials put the measure to voters. City council will discuss ballot content Tuesday.

At the previous meeting, in which the Our Mayor, Our Choice initiative was discussed, council members indirectly criticized Bedrooms by praising Our Mayor’s organizers’ willingness to work with city officials.

“I want to thank you for collaboration and not litigation,” said council member Bob Yates. “Collaboration is always better than litigation.”

“I always prefer a collaborative method rather than, yeah, rather than lawsuits,” added councilwoman Mary Young.

The establishment would not even touch our issue,” said Budd. “They told (Boulder’s Housing Advisory Board) not to even talk about it” at the same meeting Yates and Mayor Sam Weaver said it was an issue best left for the ballot and voters. 

“Our issue has not been one that’s acceptable to the people in power. That’s why we took it to the people.”

“The fact that we got nearly 8,000 signatures, that’s our part of the collaboration,” Castellano said. “We’re telling them this is an issue people care about. If they don’t want to collaborate with 8,000 of their constituents, that’s on them.”

City council meeting: 6 p.m. Tuesday, Aug. 18. Watch online or on Channel 8.

— Shay Castle, boulderbeatnews@gmail.com, @shayshinecastle

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