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Attorneys disagree over charter

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By David Giuliani

A former city attorney is urging the mayor and the City Council to accept the premise that voters didn’t pass a new constitution  earlier this month.

Since the March 2 municipal election, the attorney, Danelle Smith, has argued that even though 56 percent of voters backed the charter, that wasn’t enough for passage. Rather, the city needed 60 percent for its adoption, she maintains.

But Charles Rennick, the attorney whom the city hired to advise the citizens panel who drafted the constitution, disagrees with her arguments. He says the law and the state constitution are on the side of passage.

If the charter is officially adopted, the city will begin to have runoff elections, ensuring that all elected officials must have majority support. Also, it would increase mayoral terms to four years and mandate that mayoral and council salaries be kept at $10,000, among other changes.

In a legal analysis released last week, Smith quotes from the state charter law — “no law relating to municipalities inconsistent with the provisions of the charter shall apply to any such municipality.”

As such, she noted that the requirement in the city’s old charter, enacted four decades ago, requires a 60 percent super-majority for the passage of any amendments. So the state law allowing a simple majority — 50 percent — doesn’t overrule the old charter, she said.

Rennick argues that 50 percent was all that was required for passage. Besides, he said, the city was creating a new charter, not amending the old one.

Smith countered that the city is not starting from scratch.

“Las Vegas already has a charter adopted under the very law that the city and its charter commission used. They cannot claim that they were not ‘amending’ the current charter; they were trying to repeal it completely. A complete repeal is still an amendment of what already existed,” she wrote.

She said the Las Vegas electorate in 1968 set the bar for amendments higher than it had to.

“People may not like that now, but it is a reality,” she wrote. “The mayor and council should act now and accept the fact that the new charter did not pass.”

Rennick said the charter law has broad language and that the city’s charter process fit within that language.

“If you take (Smith’s argument) to the logical extreme, it would take a super-majority to repeal the old charter and a simple majority for a new one. The court will not enforce absurdities,” he said. “As a matter of common sense, the Legislature was intending that if a city is adopting a new charter, it’s a simple majority.”

He also referred to the state constitution, which allows a simple majority to pass a charter.

“The state constitution trumps anything to the contrary,” he said.

City Attorney David Romero had advised the City Council to get a declaratory judgment from state District Court. That would let the court decide whether the new charter is valid, he said.

He has declined to say whether he believes the charter passed, although City Manager Timothy Dodge maintains it did.

Mayor Alfonso Ortiz said before the election that he backed the new constitution. But he has moved away from that position, saying he’d like to see some changes.

The council has yet to make a decision in the charter dispute.

If adopted, the charter takes effect in March 2012.