Amending the Lakewood Municipal Code Pertaining to Initiative and Referendum procedures



Initiative and Referendum Ordinance Staff Memo
Initiative and Referendum Ordinance O-2019-5
Redline Version Ordinance O-2019-5

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I ask that City Council vote to pass Ordinance O-2019-5. While it is important that the people have the right to file litigation against the City should they choose to do so, it is not appropriate that the simple act of filing litigation places a hold on the City implementing actions stemming from a valid, certified, Initiative.

With Lakewood’s current policy, all non-litigants’ legal rights to Initiative and Referendum can be indefinitely delayed with no proof of merit required from the litigant. Current policy has the effect of preempting the Court while giving deference to the litigant simply on the basis that he/she has filed a lawsuit.

As some City Council members have made clear, the Court and only the Court is the appropriate body to determine if a legal stay is appropriate in the event a challenge is filed against the City.

The proposed Ordinance O-2019-5 will not eliminate anyone’s right to challenge the City, but it will place the decision to limit City implementation with the proper body to decide such a matter, the Courts.

02/25/2019 11:24 am
Alan Heald
10 / 11 Council Members have viewed this comment

Please oppose Ordinance O-2019-5.

Though I support the right to initiative and referendum, I have concerns about the timing and rationale of adopting this ordinance at this moment.

Chapter 2.52 of the Lakewood Municipal Code sets forth the procedures for citizens to initiate an ordinance by petitioning it onto the ballot. It also stipulates that any citizen can register a protest against an initiated ordinance, and that council shall not place the initiative on the ballot while such a protest and any appeals are pending. There can be legitimate debate about whether allowing such a protest to delay an initiative from appearing before the voters is good policy. That debate should be held at a later time.

Right now, there is an initiative with a protest against it pending in court. The rules in the current ordinance prevent the initiative from going to the ballot. Those rules have been in place for some time, including when this particular citizen-initiated ordinance began the process laid out in Chapter 2.52 of qualifying for the ballot. Changing the rules right now, in the middle of the appeal process, is fundamentally unfair and casts doubt on the legitimacy of the special election that will be the inevitable result this ordinance passing. The current rules give a protester the right not just to file a protest, but also to be assured that a potentially illegal or unconstitutional initiative cannot become law while concerns about its legality or constitutionality are unaddressed. The current rules also protect Lakewood taxpayers from paying the for the cost of a special election for an initiated ordinance that may not be valid or constitutional. The advocates of Ordinance 2019-5 are certain to argue that the rights of the many citizens who signed a petition to put this initiative on the ballot are more important than the rights of a single protester or the taxpayers at large. In my view, consideration of the hierarchy of importance of the legal rights of various groups of people in question here is an important policy question that should be carefully considered – but once again – not considered right now.

If council passes this ordinance – thereby changing the rules of a process while the process is ongoing – it is easy to foresee the following consequences ensuing:
• The protester who has an active lawsuit against the City regarding the initiative will likely file an additional suit against the City for changing the rules. We may well end up with a court injunction delaying the election until the issue of whether it was proper for the City to change the rules is sorted out.
• If the special election goes forward and the initiated ordinance is approved by the voters, the door is wide open for someone to sue the City again to contest the legitimacy of the election and its outcome. Such a lawsuit could claim, correctly, that the election would not have happened without this Council putting its thumb on the scales to dictate the outcome of a process set long ago by a previous Council, presumably for the very purpose of ensuring that future citizen initiatives are not subject to a contrived political outcome by elected officials, but rather adhere to an orderly, clear, and apolitical process.

Moreover, looking at a range of issues much broader than just the initiative process generally or the specific initiative currently under protest – what assurance are citizens supposed to have that their legal rights granted by any City Ordinance are secure if Council is willing to repeal such rights at the very moment when they might become useful to actually exercise?

Any of the above outcomes, which are entirely plausible and foreseeable, and which will cast doubt upon the legitimacy of an election, should be avoided at all costs. Any action that sets a precedent that Council can deny or abridge citizens’ legally codified rights, just because they feel that such rights are not as important as some other policy consideration, is a disastrous precedent that is antithetical to the Rule of Law that our democratic system of government and fundamental freedoms are built on. Those reasons alone are more than sufficient to vote down this Ordinance.

But there are more considerations. Everyone will recall that two years ago, Council debated whether term limits prevented a Councilor from running for re-election, on the basis that there was ambiguity in how the phrase “half a term” was defined. Council made a very wise decision to not change any of the rules regarding the definition of that phrase, which allowed that Councilor run for re-election. The rationale was that campaign season was beginning, and that changing the rules would be unfair and could appear politically motivated. Last year, council returned to the issue and passed an ordinance clarifying what “half a term” means – after it was no longer a currently contested issue, and at a time when changing the rules of conduct for an election would not actually affect an election outcome. Even more recently, Council passed a new campaign finance ordinance. The ordinance was crafted over the last year and passed just before candidates began filing to run for office this fall. Again, we see that Council adhered to the obvious principle that the only fair way to design rules for an election is when the process leading up to that election is not ongoing. This is the only fair principle to govern any potentially political process – the process should be clearly spelled out in advance and allowed to run its course. Passing Ordinance O-2019-5 would demonstrate that Council is not concerned about that fair process, but rather is more interested in dictating outcomes of processes it grows frustrated with.

I urge Council to Vote NO on this Ordinance. After all the lawsuits are done, and after the people vote on this initiative, THEN, and only then, should council come back to Ordinance O-2019-5, and consider it.

02/24/2019 12:31 am
Steven Buckley
10 / 11 Council Members have viewed this comment

I urge you to vote for ORDINANCE O-2019-5. This ordinance would remove three sections from Chapter 2.52 that include language prohibiting action on a citizens initiative during the pendency of a protest/appeal. If adopted, a protest could still be filed but the citizens initiative would be allowed to proceed to an election of registered voters while the protest proceeds through the courts.

The will of the people should not be delayed for years due to a protest/appeal that may have no merit. I urge you to vote for this ordinance to prevent abuses to the citizens initiative process. The citizens of Lakewood deserve a local government of the people, for the people, and by the people. Your vote will provide a good indicator of what kind of government you support.

02/17/2019 8:40 am
John Mohatt
10 / 11 Council Members have viewed this comment

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