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GOLDMAN: Problems spotted in stadium vote plan

Paul Goldman is a local lawyer who helped run Doug Wilder's historic campaign for governor of Virginia.

Paul Goldman is a local lawyer who helped run Doug Wilder's historic campaign for governor of Virginia.

by Paul Goldman

RICHMOND, Va. – `”Sorry Charlie” is a legendary Advertising campaign for StarKist Tuna from the 1960’s, it’s studied in graduate schools.

Yesterday, Charles Samuels, the head of City Council, proposed putting an advisory referendum on the ballot to give Richmonders the opportunity to vote on the issue of a new baseball stadium for the Richmond Squirrels.

There are three serious problems with his proposed referendum. While two are curable, the third one presents a fatal legal flaw.

Indeed, it opens up another legal issue that has not yet been publicly discussed: Does the plain meaning of City Charter section 2.03 (m) make it ILLEGAL to have a privately owned and operated baseball stadium in the city of Richmond?

This section seems to view the stadium as a public work, and thus intends to make sure such projects are controlled by the public sector. Otherwise, why have this clause in the City Charter?

This is how I read the section, as requiring such stadium to built and owned by the City unless, of course, the General Assembly or State Constitution overrides the Charter (which is a special state law).

Accordingly, the Richmond Metropolitan Authority (RMA) – a legally is a separate jurisdiction under Virginia law with a majority of board members from Richmond – can own and operate the Diamond. Technically, as a legal matter, this is consistent with Section 2.03 (m) in my view.

But what about a privately built and owned and operated stadium in Shockoe Bottom? Can it be done under the current City Charter? Or would it take a Charter Amendment?

We will get to this issue shortly. But first, let’s discuss our “Sorry Charlie” analysis.

[Click here to read 'Want to keep baseball on Boulevard? Vote yes.']

First, the wording is something only an estate lawyer can love. Way too confusing. You need to be a land surveyor to understand what it means.

Remember the average voter is likely to first read the actual wording only when inside the voting booth on election day. If the election results are close, this will create controversy.

But that can be fixed. The wording can be honed to a more declarative, straight-forward question.

Two, Mr. Samuels says his referendum, when boiled down, is aimed at asking the citizens one simple question: Do they want baseball to remain “on the Boulevard?”

But the wording of the referendum doesn’t quite achieve this limited goal.

Based on the wording, the results will be ambiguous, at least potentially, on that issue. But again, redrafting can cure this problem.

However, there is a third problem with the Samuels approach, one that cannot be corrected by redrafting.

Mr. Samuels’ referendum is really just a mechanism to show the City Council that the public supports his proposed ordinance aimed, as he says, to keep baseball on Boulevard. Thus while the referendum is advisory only, it has no force and effect. His goal is to show the Council that they should enact his ordinance since it represents the will of the people.

But Samuels’ ordinance, even if enacted, would still be legally trumped by the City Charter, the same way a state law is inferior to the State Constitution, or a federal law is unconstitutional if it violates the U.S. Constitution.

Under Chapter 2 of the City Charter of Richmond, there is Section 2.03. More specifically, there is 2.03 (m), a subsection detailing the power of city officials as regards the construction and operation of a baseball stadium in the River City.

I defy anyone to read that section and not conclude as follows: “Sorry Charlie” but your ordinance would have no force and effect whatsoever since it tries to limit by ordinance what is granted to city officials by the Charter, a superior [in the law ] legal document.

Thus, the City Council, a legislative body, can no more take away such powers granted by the Charter anymore than the General Assembly could take away powers granted by the State Constitution or the Congress could take away powers granted by the U.S. Constitution.

The point being: the power of the city officials – meaning City Council unless it has delegated it to the Mayor – as regards the location and operation of a baseball stadium is controlled by the City Charter. To the extent any ordinance passed by the Council attempts to limit such power, it is not enforceable as a matter of law.

HOWEVER, this Section of the City Charter raises another legal question not addressed by Mr. Samuels or anyone else as of yet as regards a Shockoe Bottom Stadium:

IS A PRIVATELY OWNED baseball stadium LEGAL in Richmond?

The Mayor and the backers of a downtown stadium have assumed they could construct and operate such a stadium in Shockoe Bottom, provided they agreed on the financing and get approval from City Council.

But is that true?

Read Section 2.03 (m): The plain reading suggests that a privately constructed and operated baseball stadium is NOT LEGAL in the city of Richmond. The plain meaning suggests that the City Charter intends that any such a facility be BUILT BY THE CITY, and controlled by a specially created public entity although said entity can lease the management of the complex to a private, for-profit company or rent it to the Squirrels for a penny if it so choose.

The City Charter leaves it up to the City Council or the Mayor to determine the financing of said facility, and the other aspects of the project. But the intent is to have the stadium be a publicly-owned facility.

This means since the section is entitled as having to do with public works among other things. At least this is my reading of the City Charter. As indicated above, the RMA, which is another public entity created under laws passed by the General Assembly, is a public entity controlled by Richmond [majority vote] and existing in part due to approval by the City Council.

Thus its ownership and operation of The Diamond is consistent with Section 2.03 (m).

As I read the law, the issue of a privately-owned stadium in Shockoe Bottom is a murky legal area not yet tested in Virginia. If I were interested in putting up money to build such a facility, I would want that issue to be fully answered before sending my check or buying any bond.

Paul Goldman is in no way affiliated with WTVR.  His comments are his own, and do not reflect the views of WTVR or any related entity.  Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.

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