The three-member board rejected two motions for rehearing contending that the Colorado Community Rights Amendment violated the single-subject rule, which means the measure’s sponsors may soon begin circulating petitions —unless another challenge is filed before the Supreme Court.
“Victory again! Secretary of State unanimously reaffirms decision Colorado Community Rights Amendment meets requirements,” said a post on the Facebook page Colorado Community Rights Network. “Corporations have only one more hope, taking the amendment into the Colorado Supreme Court, before we head to signature gathering!”
The post adds, “We will know if they resort to that in five days. Community rights over corporate power!!!”
The initiative gives towns, cities and counties the authority to pass measures that supersede federal and state law, which would allow localities to ban hydraulic fracturing and even corporate activity within their borders.
Attorney Mike Feeley, arguing on behalf of Stuart Sanderson, who heads the Colorado Mining Association, said the initiative’s section affirming the right of local self-government was “distinct and separate” from giving localities the right to eliminate the rights of corporations.
“This is log-rolling to garner various factions of support,” said Feeley. “Neither of those provisions are dependent upon one another.”
He said it was entirely possible that “a reasonable voter may be in favor of the right of self-government but be opposed to giving local government the ability to change the rights and powers of a corporation or business that the voter owns or invests in, or patronizes.”
Feeley also noted that the initiative veers into the rights-of-nature movement by giving local governments the power to establish “the fundamental rights of individuals, their communities and nature.”
Ecuador added “rights of nature” to its constitution in 2008, but as yet no U.S. state or locality has added the language to its bylaws, meaning that Colorado would be the first if the initiative passes in its current form, said Feeley.
The movement’s goal is to acknowledge that nature in all its forms “has the right to exist, persist, maintain and regenerate its vital cycles,” which upends the way that the law treats property, he said.
“Now I could be very, very supportive of local control, local issues, local self-government and the general purpose of this initiative, but I could be dramatically opposed to altering rights to create some new, undefined, as yet untested right of nature,” said Feeley. “I think it’s a separate subject altogether.”
Chantell Taylor, attorney for objectors Mizraim Cordero and Scott Prestidge, argued that “under the guise of local self-government, now we’re taking away rights.”
“We’re taking away rights and putting businesses and corporations in a lesser protected class, telling them that local governments can eliminate, redefine and effectively change the legal status of corporations and business entities,” said Taylor. “So imagine a voter who thinks they’re voting for local self-government, only to later find out their local small business is losing rights.”
Deputy Secretary of State Suzanne Staiert said that the initiative raised interesting legal questions, but that it wasn’t the role of the title board to determine a measure’s constitutionality.
“I mean, the right to nature, it’s a phrase we don’t hear here commonly, we haven’t probably interpreted it in case law, but that doesn’t mean it doesn’t flow with the single subject or that there’s anything surreptitious about it,” said Staiert.
Solicitor General Dan Domenico agreed, saying that “the basic point of it is fairly straightforward.”
“Mr. Feeley and I might both be a little mystified, even though I grew up in Boulder, by the concept of the rights of nature, but I think that’s perfectly fine and within the broader concepts of what they’re trying to do here,” said Domenico. “The fact that I don’t know exactly how that would work if this were to go into effect is a fairly common feature of initiatives and doesn’t necessarily make it a second subject.”
The initiative’s sponsors are aiming to place the measure on the Nov. 4 ballot.