Another Perspective — Judicial review needed

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By Joe McCaffrey

Like many of the readers of this page, I have wearied of the political theater that passes as public discourse relative to the conflict between our mayor, the supporters of the Community Water Rights and Local Self-Government Ordinance (aka the anti-fracking ordinance) and those who simply wish to revisit the last election. I am deeply distressed by the lack of civility shown by the parties.

Like our mayor, I believe the Community Water Rights Ordinance to be fatally flawed. While everyone agrees that our mayor does not have the authority to veto an ordinance, the mayor asserts that the ordinance was void ab initio, or from the beginning, because it violates both the federal and state constitutions and therefore he could not and did not sign it. I believe the mayor was courageous in his action, but I believe his assertion was incorrect.

I believe that the determination of the constitutional validity of the ordinance was clearly a judicial matter rather than an executive matter. The mayor would have been on much stronger legal and political ground by simply signing the ordinance and seeking immediately judicial review, but he did not. This action has had profound consequences for the mayor and on the city; over 1,000 citizens signed a petition for his recall.

Finally, Mr. Mayor, you need to consider the effect that this continued controversy is having on your ability to govern. I believe that there is a very real possibility the courts will reverse the action of the city clerk, reopening the recall controversy.

I believe that ordinance in question is in reality a manifesto, which attempts to establish a new order built on the Ninth and Tenth Amendments to the Constitution and redress the balance of power between corporations and communities. I support this goal, but not by attempting to nullify past and future actions of superior legal and judicial bodies.

While the proponents of this new order are quite sincere, they are “tilting at windmills” at our expense. In the history of our country there have been many nullification movements, but not a single one has been found constitutional; indeed we fought a Civil War over one such act.

I believe that the ordnance is also fatally flawed in several other aspects. It attempts to legislate oil exploration within the entire watershed, which has boundaries well outside the city. Case law is very, very clear; a city cannot legislate outside its boundaries. The ordinance proposes to suspend the provision of City Charter whereby an ordinance can be repealed by majority vote of the council and replace it with the requirement that the Community Water Rights Ordinance can be repealed only by a unanimous vote of the City Council, followed by a referendum. This is a de facto amendment to the City Charter without the required referendum.

I am deeply offended that the self-proclaimed proponents of democracy would attempt to amend the City Charter in such an undemocratic fashion.

Mr. Mayor, I have been one of your strongest supporters and I call on you to end this useless and destructive political theater; I call on you to submit the Community Water Rights and Local Self-Government Ordinance to judicial review at the very earliest date.

The path to review is hindered by your assertion that the Ordinance does not exist. You are between a rock and a hard place. I believe that you must abandon your position and sign the Ordinance. Only then can it have judicial review; only then can you regain your standing with the voters.

Joe McCaffrey is a Highlands alumnus and member of the Highlands Foundation. He teaches astronomy at Highlands and is a member of the Optic’s Editorial Board. McCaffrey may be reached at 454-0319.