A judge ruled a portion of the City of Englewood charter unconstitutional, legally permitting a bond question of up to $41.5 million for parks improvements to appear in front of Englewood voters on the November ballot.
The Aug. 19 ruling was the result of a lawsuit filed by plaintiff Stephanie Carlile, in her official capacity as the city clerk and designated election official, against the City of Englewood as the defendant on Aug. 12.
In the lawsuit, which involved representatives of the city as both the plaintiff and defendant, the judge declared a section of the city’s charter null and void, stating that it violated a section of the Colorado Taxpayer’s Bill of Rights in the Colorado Constitution.
“It is hereby ordered, adjudged and decreed that the reference to Section 104 (general obligation bonds) of the City of Englewood Charter is hereby stricken and removed as a matter of law,” said the ruling by Arapahoe County District Court Judge Benjamin Todd Figa.
“The Plaintiff, as the City’s designated election official, may therefore certify a November election ballot that contains both a City general obligation bond ballot question and other City ballot questions,” Figa wrote.
The situation arose after a group of residents started to take steps to get two citizen-initiated questions, concerning direct mayoral election and council vacancies, added to the November ballot. On Aug. 7, they submitted the signatures and the petitions were “in apparent compliance with the signature requirement,” according to court documents. As of Aug. 19, the city clerk is in the process of determining the validity of those signatures, court documents say.
Because of a conflict between a section of the city charter and the Taxpayer’s Bill of Rights, “the City Clerk did not have clear direction as to what questions were legally allowed to be on the ballot,” City Attorney Tamara Niles wrote to the Englewood Herald.
The city believed that, due to a charter provision that general-obligation bond questions could not run alongside other ballot questions, the parks bond was at risk of being kept off the November ballot.
To remedy the issue, the city clerk initiated a declaratory judgment action against the city “to interpret city charter’s conflict with TABOR, and thereby obtain court direction on ballot certification,” Niles wrote.
“The Colorado Constitution prevails over any conflicting charter provisions,” Niles wrote in an email to the Englewood Herald. “The court found that as a matter of law, this charter provision is void and that an Englewood GO Bond question can be brought to the voters for consideration whenever allowed by TABOR.”
Although charter changes usually require voter approval — as is stipulated by the charter itself — this change will be permanently made without voter approval. Niles said this is because the charter provision was ruled to be unconstitutional.
“Rather than impeding on the citizens’ democratic right to vote on charter changes, this lawsuit ensured the citizens’ democratic right to consider whether they will authorize the city to spend $41.5 million to improve city parks,” Niles said. “If Englewood citizens adopted a charter provision that conflicted with TABOR, it would be void (just as the court ruled in this case); if citizens refused to repeal this provision in charter, it still would be void (just as the court ruled in this case).”
To conduct the lawsuit, the city paid outside legal counsel to provide independent legal advice to the city clerk. Niles said the city was required to obtain this service since the plaintiff was adverse to the city. The hourly rate for the private attorney services was $275 per hour, which will total more than $1,500 in costs to the city for the case.
Niles, as the city attorney, represented the city in the case, but said her office determined she was “ethically prohibited” from ardently defending the charter.
She said Colorado Rules of Professional Conduct, applicable to attorneys practicing in the state, prohibit her from defending a proceeding “unless there is a basis in law and fact for doing so that is not frivolous.”
“Because the language of charter section 14(3) clearly conflicted with TABOR, and was therefore unconstitutional and void, the City Attorney’s Office concluded they were ethically prohibited from vigorously defending the current charter language,” she said.
The city clerk is required to certify the November ballot questions by Sept. 6. After that, the bond question will officially be on the November ballot.