An Arapahoe County judge has permanently blocked Aurora from enforcing against a 2021 council candidate the city charter's prohibition on people holding elected office if they have ever received a felony conviction.
District Court Judge John E. Scipione agreed with former at-large city council candidate Candice Bailey that the council's vote in August to add an "editor's note" to the charter and the city's promise in court that it would not enforce the ban were both insufficient forms of relief.
"[T]he issue at hand is capable of being repeated, amounting to a potentially recurring constitutional violation," Scipione wrote in a Nov. 29 order.
Ryan S. Luby, a spokesperson for the city, said Aurora will follow the judge's order and intends to place a question before voters in 2022 to amend the charter for compliance.
Bailey, who came in fourth in a field of six at-large council candidates earlier this month, pleaded guilty to a class 4 felony assault in 1999, when she was 22 years old. She subsequently completed her sentence and has served on multiple local, state and nonprofit boards as part of her community activism.
In May of this year, she petitioned the court asking for a declaration that the felony conviction ban in the Aurora city charter and the city code violated the state constitution and related laws. While Scipione declined to label the charter provision as unconstitutional, he based his decision on the Colorado Municipal and Uniform Election Codes, which do not disqualify candidates based on past felony convictions.
“This is not just about me, but about making sure that all future candidates with felony convictions won’t face the same barrier I have, and ultimately, for voters to decide who they want to represent their communities," Bailey said upon filing the lawsuit.
Mark Silverstein, legal director of the ACLU of Colorado who represented Bailey in the lawsuit, said Bailey intends to run again in 2023. He believes Aurora will not enforce its charter provision against other candidates either.
"I expect we’ll be writing to the other jurisdictions that have similar provisions and advising them to repeal or revise them to comply with the Colorado constitution," he said.
According to the Colorado Municipal League, there are 28 municipalities whose charters disqualify those with felony convictions from holding local office. However, not all of those jurisdictions have bans as restrictive as Aurora's. Some municipalities disqualify felons from holding office for a set number of years following their convictions. Others mirror the language of the state constitution, which prohibits people from holding public office if they have been convicted of perjury, bribery or embezzlement of public money.
Because Bailey's conviction was not for any of those offenses, she argued, it would violate the constitution to bar her from running.
"The right to run for public office is among the rights of citizenship automatically restored to a person who has served out their full term of imprisonment," her attorneys wrote to the court. "There is no real, clear, and compelling reason that anyone who has ever been convicted of a felony is necessarily unqualified even to become a candidate for public office in Aurora."
The city asked Scipione to dismiss the case as moot because the city clerk planned to allow Bailey to file nomination petition forms and place her name on the ballot. In addition, the council voted to add a note to the city charter and municipal code stating that only the felony convictions outlined in the constitution will be disqualifying going forward. In doing so, Aurora conceded its charter and code prohibitions on felony convictions for officeholders "are not in accord with the applicable sections of the Colorado Constitution."
Bailey responded that the only permanent solution would be a vote of Aurora residents to amend the charter or to have a court void the felon ban.
"Because defendants have not demonstrated (1) the city clerk’s authority to disregard a provision of the charter; (2) the city’s authority to add a formal annotation effectively amending the charter without a vote of Aurora’s electorate; or (3) city council’s authority to pass an ordinance inconsistent with or modifying a governing charter provision, this case is not moot," her lawyers wrote.
Declining to follow the charter as written, Bailey added, would be an abuse of the city clerk's authority — although there is precedent for such a scenario. The city council violated the charter earlier this year when it could not agree on who should fill a vacant council seat.
Sen. Rhonda Fields, D-Aurora, welcomed the court order and believed the voters should decide whether a candidate is fit to hold office.
"Sometimes we need to let people move beyond their past. I support someone who has proven and paid their debt on whatever the crime was," said Fields, who has won repeated elections to the General Assembly even with her own decades-old arrests. "If someone has the audacity to run for office when they know they have a criminal record, why not? It's not up to me to say you can’t do it because of your past."
The case is Bailey v. City of Aurora et al.
This story has been updated with a statement from a city spokesperson.
