CITY CLERKS OFFICE, CITY OF BOULDER, BOULDER, COLORADO

1777 Broadway, Boulder, Colorado 80302

Protest No. 2016-02
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In Re:
Protestor/Appellant: Crystal Gray and John Spitzer,
v.
Petitioners/Appellees: Michelle Estrella, Chris Ozeroff, Brady Robinson, Andy Schultheiss and
Jessica Yates.
This matter came before the City Clerk on the petition protest of a citizen initiative to
amend the Boulder Home Rule Charter. The hearing was held on August 18, 2016, and the
parties were given until 5 p.m. on August 19, 2016 to file briefs. The Protestors were
represented by John Spitzer, and the Petition Committee was represented by Martha Tierney.
The Protestors called Steve Pomerance as a witness, and the Committee called Andrew
Schultheiss.
I. PROCEDURAL AND FACTUAL BACKGROUND
A.

History of Proceedings

1.
A citizen initiative petition to amend the Boulder Home Rule Charter to add a
requirement to the qualification of a council member that the person may not be elected to more
than three terms in the persons lifetime was filed with the Boulder City Clerk on June 28, 2016.
2.
On April 27, 2016, prior to distributing the petitions, Andrew Schultheiss
submitted an initial petition form to the City Clerk for approval.
3.
The City Clerk did not approve the initial petition form, and instructed Mr.
Schultheiss on how to correct the petition in a letter dated May 4, 2016. That letter advised the
Petition Committee that the Clerk would be following the Boulder Home Rule Charter sections
37-42, C.R.S. 32-2-201, and C.R.S. 31-11-101, et seq.
4.
On May 5, 2016, Mr. Schultheiss resubmitted a corrected petition form, which the
City Clerk approved on May 6, 2016.

5.
The petitions that were circulated included an extra column for name information,
were printed with a landscape orientation, and displayed warning language in red ink at the top
of the first page and the same language in black ink on subsequent pages.
6.
On June 30, 2016, after the completed petitions were filed, the City Clerk issued a
notice of insufficiency.
7.

The Petition Committee withdrew the petition by letter dated June 30, 2016.

8.
Mr. Schultheiss attempted to fix a portion of the insufficient petition sections by
replacing incorrect affidavits with correct affidavits. The process involved removing the old
affidavits and then attaching the newly completed affidavits to the petitions.
9.
Mr. Schultheiss resubmitted the petitions on July 11, 2016, and the City Clerk
issued a notice of sufficiency on July 28, 2016.
10.

A portion of the resubmitted petitions contained extra staple holes.

11.

The protest was filed with the City of Boulder Clerks Office on August 8, 2016.

12.
Pursuant to section 31-2-223, C.R.S. (2015), a petition protest hearing was held
on August 18, 2016.
13.

The issues presented at the hearing on the protest were:

a. Whether the petition was disassembled in violation of sections 31-2-221(2) or
31-11-106, C.R.S. (2015);
b. Whether the petition was printed on pages in violation of section 31-2-221(1),
C.R.S. (2015);
c. Whether some or all of the petition sections did not have the warning in red
letters as required by section 31-2-220(1), C.R.S. (2015);
d. Whether the petition was not consistent with the format approved by the City
Clerk in violation of section 31-11-106(1), C.R.S. (2015); and
e. Whether the warning printed on the petition violated section 31-11-106(3)(a),
C.R.S. (2015).

B.

Background

The City Clerk is responsible for reviewing the submitted petition sections for a
determination of sufficiency pursuant to section 31-2-210(3), C.R.S. (2015) and for hearing this
protest pursuant to section 31-2-223(2), C.R.S. (2015). The items to be reviewed are different
for each. In reviewing the submitted petitions for a determination of sufficiency, C.R.S. 31-22

210(4) limits the Clerk to determining whether a sufficient number of signatures were registered
electors at the address on the petition and whether the circulator affidavit was properly
completed. Therefore, the Clerk cannot decline petitions with a sufficient number of signatures
on other grounds. However, the Protestors can, and have here, raised issues beyond the
signatures themselves. The Clerk does not have to decide that the determination of sufficiency
was in error to agree with the issues raised in the protest. At the protest hearing the Clerk
evaluates the additional issues raised as errors by the Protestors that are separate from the
signatures reviewed for the determination of sufficiency.
At this proceeding, as Hearing Officer, the Clerk is to hear and decide the issues
presented in the protest in accordance with the applicable law and the Rules for Hearings
Pursuant to Chapter 1-3, Quasi-Judicial Hearings, B.R.C. 1981, dated August 23, 2011 (the
Rules), and section 31-2-223, C.R.S. (2015).
II. FINDINGS
1.
As the Petition Committee was advised on May 4, 2016, the law being applied is
section 31-2-210, C.R.S. (2015) and the Boulder Home Rule Charter. To the extent it does not
conflict with either the Boulder Home Rule Charter or section 31-2-210 C.R.S. (2015), section
31-11-101, C.R.S. (2015), et seq. also applies.
2.

Both witnesses that testified were credible.

3.

The Petition Committee did not follow the law in that:

a. It did not follow the format approved by the Clerk when printing the petitions
in landscape rather than portrait format.
b. It was not consistent in printing the warning on each page by printing some in
red and some in black ink.
c. After withdrawing the petitions on June 30, 2016, the Petition Committee
disassembled the petitions to remove the previous affidavits and add corrected
affidavits to some of the petitions.

4.

With respect to disassembly of the petitions:

a. There was no testimony that it had the effect of separating the affidavits from
the signatures. Mr. Schultheiss testified that the petition sections for which
affidavits were substituted were kept together when the new affidavits were
attached and the previous affidavit removed, and it was all done by the
circulator with witnesses.
b. There was testimony that the signatures on the petition sections submitted
prior to withdrawal of the petitions were exactly the same as the signature
pages of the sections determined sufficient.
3

5.

There was no evidence that there was an intent to defraud.

III. CONCLUSIONS OF LAW

1.
The rules surrounding disassembly of initiative petitions are strict according to the
statutory language of sections 31-2-221(2) and 31-11-106, C.R.S. (2015). Because the petition at
issue proposes an amendment to the Boulder Home Rule Charter, the provision of section 31-2221(2), C.R.S. (2015) is most applicable.
2.
The statutory language provides that any disassembly of the petition which has
the effect of separating the affidavits from the signatures shall render the petition invalid and of
no force and effect. 31-2-221(2), C.R.S. (2015) (emphasis added).
3.
Proof of disassembly must be greater than the mere presence of extra staple holes.
See Committee for Better Health Care for All Colorado Citizens by Schrier v. Myer, 830 P.2d
884, 896 (Colo. 1992). Additional evidence of disassembly, such as the presence of pages
exhibiting tears or other irregularities, might justify the establishment of a presumption of
misconduct. Id. at 897.
4.
Therefore, while extra staple holes constitute circumstantial evidence of
disassembly, the presence of extra holes by itself does not establish an evidentiary presumption
of disassembly that invalidates a petition. Committee for Better Health Care, 830 P.2d at 896.
5.
The appropriate level of compliance for adhering to the statutory requirements for
petition form is based on substantial conformity, not strict conformity. See Loonan v. Woodley,
882 P.2d 1380, 1383-84 (Colo. 1994).
6.
There are three factors to determine whether a petition substantially complies with
the statutory requirements: 1) the extent of the districts noncompliance in the particular ballot
issue before the court, that is, whether the noncompliance is an isolated oversight or a
systematic disregard for the requirements; 2) the purpose of the provision violated and whether
that purpose is substantially achieved despite the districts noncompliance; and 3) whether it
can reasonably be inferred that the district made a good faith effort to comply or whether the
districts noncompliance is more properly viewed as the product of an intent to mislead the
electorate. Loonan, 882 P.2d at 1384.
IV. CONCLUSION
The Colorado Supreme Court has equated the right to petition the government to the right
to vote. Thus, the court has adopted the voting rights substantial compliance standard for
petition cases. The Protestors argue for a strict compliance standard; they seek to have petitions
discarded if the petitions do not comply strictly with the letter of the law. This is not the
appropriate standard. After considering all of the evidence and applying the law to the facts, I
find that the Petition Committee substantially complied with both the Boulder Home Rule
Charter and the Colorado Revised Statutes. Although the petitioners were careless in not
4

following both the law and the direction of the Clerk, I do not find that there was a systematic
disregard of the legal requirements. The size of margins, the orientation of the paper, the color
of the ink used and the insertion of the words in the City of Boulder into the warning are all
failures to comply with the legal requirements. I find that none of these errors are evidence of an
intent to mislead the electorate, but rather poor practice by the Petition Committee. Striking
petitions based on these errors would likely deprive members of the electorate of their right to
petition the government. The only evidence offered by the Protestors regarding disassembly of
the petitions was the presence of additional holes. As noted above, additional holes alone are not
sufficient to prove disassembly. Mr. Schultheiss testified that the petition sections for which the
affidavits were substituted were kept together. His testimony was not rebutted by any evidence
from the Protestors. Thus, I find that the substitution of affidavits did not have the effect of
separating affidavits from the signatures. For all of these reasons, the protest is denied.
Dated this 23rd day of August, 2016.

Lynnette Beck Date: 2016.08.23 19:12:06 -06'00'

__________________________________
Lynnette Beck, City Clerk
Digitally signed by Lynnette Beck

CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of August, 2016, a true and correct copy of the
foregoing FINDINGS OF FACT AND CONCLUSIONS OF LAW was sent via email to the
following:
Protestors:
Crystal Gray graycrystal@comcast.net
John Spitzer jspitzer011@comcast.net
Counsel for Petition Committee:
Martha M. Tierney mtierney@tierneylawrence.com

Lynnette Beck Date: 2016.08.23 19:18:09 -06'00'

_________________________________
Lynnette Beck
Digitally signed by Lynnette Beck