A key component of Initiated Ordinance 303, which seeks to build on Denver’s camping ban and give residents the authority to sue the city if it does not address encampments on a strict timeline, was struck down Sunday night before votes on the measure have been counted as part of the Nov. 2 election.
Denver District Court Judge Darryl Shockley issued his ruling at 9:03 p.m. Sunday. He ruled in favor of the city, which sued earlier this month to block a section of the ordinance that would have mandated the city must take action within 72 hours — three days — after receiving a complaint from a resident about encampments of people experiencing homelessness.
The city, in its lawsuit against Garrett Flicker, the chairman of the Denver Republican Party who brought the measure to the 2021 ballot, argued the 72-hour requirement would infringe on the city’s authority to carry out “administrative functions” of enforcing its laws.
Shockley agreed, writing in his opinion, “Mandatory enforcement of the (unauthorized camping ordinance) based solely upon complaint impinges on the necessary discretion entrusted to law enforcement to ensure that suspects are afforded constitutional protections and the UCO remains constitutional as applied.”
The 72-hour mandate would also prevent police from prioritizing responses to other reported illegal activity in the city, Shockley added.
In the same order, Shockley also ruled against a motion filed by Flicker seeking to dismiss the city’s lawsuit.
Flicker got the language of the ordinance approved on May 6. The city certified supporters collected enough signatures to get the measure on the ballot on July 28.
Earlier this month, the Denver Clerk and Recorder’s Office mailed out more than 467,000 ballots to city voters all with the Initiated Ordinance 303 language that included the 72-hour enforcement requirements. As of Monday afternoon, 53,515 of those ballots, roughly 11.5%, has been filled out and returned, .
Flicker, on Monday, said he expects the ordinance to pass on Tuesday night and when it does, he is ready to appeal Shockley’s ruling.
“We’re trying to obtain some fairness for Denver residents and property owners who have been saddled with the City’s failures to address the homeless crisis,” Flicker said in a statement emailed to The Denver Post. “It is unfortunate that the City of Denver would go to these lengths to avoid enforcing its own ordinances.”
The measure has more than one component. It also would require written permission for any camping on private property and cap the number of city-sanctioned safe camping sites at four, mandating that each have amenities like restrooms and running water.
By invalidating the 72-hour enforcement requirement, Shockley took the teeth out of the measure. It would have granted residents the power to sue the city if officials did not take action against an encampment within that 72-hour window.
The Denver City Attorney’s Office issued a statement Monday emphasizing that Shockley’s ruling “does not impact the voting process” and that if Initiated Ordinance 303 passes on Tuesday all other subsections of the measure will become law.
“Denver has great respect for the voter initiative process, but this process is not without its limits and it must be lawful,” the office’s statement said.
Shockley noted in his ruling that there is precedent in Colorado for striking down measures or portions of measures that have yet to be decided on by voters. In the 1987 case City of Idaho Springs vs. Blackwell, the Colorado Supreme Court found that a trial court has jurisdiction to rule on legislative and administrative matters before the electorate had its say.
That doesn’t mean Flicker won’t have a case to make should he take the matter to the Colorado Court of Appeals.
“I think this is an interesting issue that the appeals court would take up,” said Chris Jackson, a partner in law firm Holland & Hart and an election law professor at the University of Denver. “I think there is a good argument on both sides and this is an unusual case. This kind of thing doesn’t come up very often.”
If Flicker does appeal and gets a favorable ruling, the 72-hour deadline is not guaranteed to be reinstated, Jackson said. The case could be sent back down to district court for further consideration if things progress that far.
