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Denver judge strikes down key portion of camping ban ballot question days before the election

denver homeless
Posted at 5:22 PM, Nov 01, 2021
and last updated 2021-11-01 22:40:06-04

DENVER — A Denver District Court judge has decided to strike down a portion of a Denver ballot question that deals with the city’s camping ban.

Initiated Ordinance 303 seeks to require the city to enforce its camping ban more quickly. However, last month the city filed a lawsuit saying a portion of the ballot question infringes on its authority.

In a Halloween night decision, Judge Darryl Shockley agreed, blocking all of subsection (c) of ballot question 303.

“Denver has great respect for the voter initiative process, but this process is not without its limits and it must be lawful. Subsection (c) of Initiative 303 was found by the District Court to be an unconstitutional exercise of the voter initiative process, because it infringed on Denver’s ability to administer its unauthorized camping ordinance,” said a statement from the city attorney’s office.

The original measure language reads:

Be it enacted by the City and County of Denver:

Section 1. D.R.MC. Sec. 38-86.2 is amended to read as follows:

Sec. 38-86.2. - Unauthorized camping on public or private property prohibited.

(a) It shall be unlawful for any person to camp upon any private property without the express written consent of the property owner or the owner’s agent, and only in such locations where camping may be conducted in accordance with any other applicable city law.

(b) It shall be unlawful for any person to camp upon any public property except in up to four designated locations where camping has been expressly allowed by the officer or agency having the control, management and supervision of the public property in question. The four designated locations shall provide running water, restroom facilities, and lighting and shall be funded by city revenues to support the city’s homeless population.

(c) Any person may file a complaint with the city to enforce this section. The city must take enforcement action within 72 hours of the filing of a complaint. Any person may bring a civil action against the city in county court for failure to enforce this section. Any prevailing plaintiff in such action shall be awarded reasonable costs and attorney fees together with appropriate injunctive relief.

Denver City Attorney Kristin Bronson argued in court that the 72-hour requirement would overstep the city’s right to determine how carry out administrative functions like enforcing laws.

Attorneys for the proponents of Initiative 303 argued in court that an enforcement action could simply include a notice to vacate the premises. They also disagreed with the timing of the lawsuit and who it was filed against.

In the end, Judge Shockley determined that subsection (c) was unlawful and not the proper subject of the initiative process and so it should not be allowed to go into effect if the initiated ordinance passes.

The rest of the ballot question still stands, however.

“Democracy is a powerful tool, but I respect the Court's ruling that a popular vote is not designed to replace the judgment of safety officials on the ground, who also must ensure all constitutional and other legal requirements are met,” said Denver city councilwoman Robin Kniech in a statement, speaking from a personal capacity.

Proponents of ballot question 303 say they are disappointed by the court’s ruling but not necessarily surprised.

“I just wish that the city that worked so hard to stop a private citizen from getting some enforcement measures on homeless issues onto a ballot would work just as hard to help curb this epidemic that has plagued our city,” said Garrett Flicker, the Denver Republican Party chairman who crafted the question and who was named in the lawsuit.

He calls the lawsuit a last-ditch effort by the city to block the ballot question over fear of it passing and is promising to appeal the court’s decision if voters approve of 303.

“This is a fight that’s far from done,” Flicker said.

Others like Denver Homeless Out Loud, which opposes the ballot question, are tempering their excitement about the court ruling, saying that the job is not done yet.

The organization is still urging people to vote not on the ballot question.

“We are glad the court recognized the unlawfulness and harm of that particular section, section C, but in truth the whole thing is rotten,” said Benjamin Dunning.

He believes this initiated ordinance is the wrong ballot question at the wrong time that would further punish people for being poor.

“When we’re talking about everything but housing when it comes to homelessness, we're just talking about the wrong things, and 303 is an example of that,” Dunning said.

He believes the best solution is for more housing to be provided within the city instead of constantly getting law enforcement involved.

For voters who have already cast their ballots in Denver, there’s no going back. For everyone else, this latest court ruling just further complicates an already confusing ballot.