They started out questioning the ability of Denver city officials to trade a formerly designated natural area for an office building. But opponents of the Hentzell Park land swap now have another bone to pick with Denver Clerk and Recorder Debra Johnson, claiming that her rejection of their efforts to put the issue on the ballot amounts to playing high-stakes poker with a stacked deck. The dispute, they say, raises a basic constitutional issue: What happens to the right to petition the government for redress if you need the government's permission to do so?
As we've previously reported, Mayor Michael Hancock wants to turn over 11.5 acres of city-owned open space adjoining Paul A. Hentzell Park in southeast Denver to the Denver Public Schools. DPS wants to build an elementary school there to take the pressure off overcrowded schools in the area. In return, the city would take over a DPS building at 13th and Fox and convert it to a "family justice center," housing various agencies that provide services to domestic violence victims.
Overruling the recommendation of her own advisory board, Denver Parks and Recreation manager Lauri Dannemiller agreed to formally remove the "natural area" designation for the site, which Hancock has described as "blighted" and overrun with prairie dogs; about two acres of the site is currently a parking lot. The Denver City Council approved the deal in April.
But critics of the transaction, including some residents of the area and former park officials, say the site is one of the last remnants of a prairie ecosystem in the city limits and a key connectivity point for wildlife in the Cherry Creek corridor. In May, a newly formed group called Friends of Denver Parks launched a petition drive to put the matter to a public vote. After Denver Clerk and Recorder Debra Johnson rejected the paperwork for the referendum drive, the group sued Johnson and the city.
Friends of Denver Parks attorney John Case maintains that the area is part of a 26-acre parcel known as "Hampden Heights North Park" that was purchased by the city in 1936. Although it was never actually declared a park by ordinance, various city maps and signs have referred to the area as a park, and longtime residents of the area testified that they'd relied on representations by city officials (including one 1979 letter from Mayor Bill McNichols) that the area would remain undeveloped.
On Friday, Denver District Judge Herbert Stern denied Case's request for an injunction to halt the swap. Case is appealing that decision, and he's also launched a constitutional challenge to Johnson's rejection last week of the group's referendum petitions, containing 6,664 signatures -- which, if valid, would be enough to put the issue on the November ballot.
In her letter rejecting the signatures, Johnson explains that the city charter prohibits gathering signatures until her office has approved the petition affidavit, sample and ballot title. Johnson points out her office already rejected the ballot title, ruling that Case's group has no standing to challenge the land transaction, which she and the city attorney have defended as an "administrative" rather than "legislative" action.
In a new court filing, Case essentially argues that the charter's requirement that a city official "approve" in advance an action that challenges the authority of city officials is unconstitutional. Here's the way he lays it out:
68. The clerk and recorder is not required to have legal training and does not perform judicial functions.
69. In ruling upon plaintiffs' referendum petition, Johnson did not exercise independent legal judgment, but instead, relied upon the Denver City Attorney, who wrote the rulings for her.
70. The City Attorney is appointed by, and serves at the pleasure of, the mayor. The City Attorney is the agent of the mayor.
71. In rejecting plaintiffs referendum petition, Johnson cited section 8.3.2 (C) of the city Charter, which states in pertinent part: No petition shall be circulated nor shall any signatures be procured until such affidavit, petition sample, and ballot title are approved by the Clerk and Recorder.
72. Section 8.3.2 of the Charter on its face and as applied allows the clerk and recorder and City Attorney absolute discretion to make judicial determinations as to the legal sufficiency of voter initiated petitions, thereby usurping the power that belongs to the judicial branch of government.
73. Section 8.3.2 of the Charter on its face and as applied allows the clerk and recorder and City Attorney to interfere with and thwart voter petition initiatives, for the improper purpose of accomplishing political objectives of the mayor and the clerk and recorder that are in opposition to the will of the people.
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Are the opponents of the land swap merely spinning their wheels -- or is Denver's approach to the petition process going to get a full airing in court? Read Case's challenge to the city charter requirements below.
More from our Environment archive: "Hentzell Park natural area 'simply not a park,' city insists."