HomeMy WebLinkAbout2017CV219 - ERIC SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 005 - DEFENDANT CITY'S VERIFIED ANSWER, REQUEST FOR EXPEDITED HEARING AND REQUEST FOR SETTING OF CONTESTOR'S BOND AMOUNT PURSUANT TO C.R.S. 1-11-203.5DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiff: ERIC SUTHERLAND,
V.
Defendant: THE CITY OF FORT COLLINS
Indispensable Party: Angela Myer [SIC], Larimer
County Clerk and Recorder
Kimberly B. Schutt, #25947
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011
Email: kschutt@wicklaw.com
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY'S OFFICE
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 221-6520
Email: iduval@fcgov.com
COURT USE ONLY
Case Number: 2017 CV 219
Courtroom: 5C
DEFENDANT CITY'S VERIFIED ANSWER, REQUEST FOR EXPEDITED
HEARING AND REQUEST FOR SETTING OF CONTESTOR'S BOND AMOUNT
PURSUANT TO C.R.S. §1-11-203.5
COMES NOW, the Defendant City of Fort Collins ("City"), by and through its counsel,
the Fort Collins City Attorney's Office and Wick & Trautwein, LLC, and respectfully submits
the following Answer to the Plaintiff's Petition for a Contest Concerning the Form and Content
of the City of Fort Collins Broadband Authorization Election Ballot Question ("Petition"). The
City further requests an expedited hearing to occur within 10 days of the filing of this Answer,
and the setting of a bond to be posted by the Plaintiff, both as required by C.R.S. §1-11-203.5.
In support thereof, the City answers, avers and states as follows:
1. The City admits the allegations of Paragraph 1 of the Petition.
2. The City denies Paragraph 2 of the Petition as stated. The proposed Charter
amendment is attached to the Petition and also as Exhibit I to this Answer, and speaks for itself.
belief.
The City denies the allegations of Paragraph 3 of the Petition.
4. The City admits the allegations of Paragraph 4 of the Petition on information and
5. The City admits the allegations of Paragraph 5 of the Petition.
6. With regard to the allegations of Paragraph 6 of the Petition, the City admits that
Angela Myers [Not "Myer" as named in the Plaintiff's Petition] is the Clerk & Recorder for
Larimer County, Colorado, and in that capacity is responsible for managing coordinated
elections occurring in Larimer County. To the extent Ms. Myers is an indispensable party as
asserted by the Plaintiff, it is the Plaintiff's burden to join said indispensable party, and his
failure to do so should result in dismissal of this action.
7. With regard to the allegations of Paragraph 7 of the Petition, the City admits this
Court is the proper venue for a proceeding such as the one alleged in the Petition, but denies that
the Court yet has proper jurisdiction due to the Plaintiff's failure to post the bond mandated by
C.R.S. §1-11-203.5(1). That statutory section provides, in pertinent part, that "[B]efore the
district court is required to take jurisdiction of the contest, the contestor shall file with the clerk
of the court a bond, with sureties, running to the contestee and conditioned to pay all costs,
including attorney's fees, in case of a failure to maintain the contest. The judge shall determine
the sufficiency of the bond and, if sufficient, approve it." [Emphasis added]. On information
and belief, Plaintiff has not yet filed any bond, let alone one deemed to be sufficient to pay all
costs, including attorney's fees, in case of his failure to maintain the contest, and thus this Court
cannot yet take jurisdiction of this action. The City estimates in good faith that it will reasonably
incur costs and attorney's fees through the summary adjudicative hearing in the amount of
$3,500, and asks the Court to enter an order requiring the Plaintiff to immediately post a bond in
this amount before the Court accepts jurisdiction of this case.
8. With regard to the allegations of Paragraph 8 of the Petition, the City admits that
its City Council took formal action by affirmative vote to adopt Ordinance 101, 2017 to set the
ballot title language, and that a copy of said Ordinance is attached to the Plaintiff's Petition. The
Ordinance speaks for itself. The City denies the remaining allegations of Paragraph 8 of the
Petition, and affirmatively states that the Ordinance was signed by the Mayor of the City of Fort
Collins on August 21, 2017, as reflected in the copy attached hereto as Exhibit I to this Answer.
9. Paragraphs 9 through 16 of the Petition contain the Plaintiff's legal arguments and
conclusions rather than factual allegations, and as such do not require an admission or denial on
the part of the City. Nevertheless, the City generally denies said legal arguments, as stated. The
cited provisions of the Fort Collins Charter and Colorado Revised Statutes, as well as the cited
case law, speak for themselves. The City intends to seek leave of Court to submit a separate
legal brief addressing these issues.
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10. Paragraphs 17 through 20 of the Petition again primarily contain the Plaintiff's
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. Further, the City specifically denies there is a missing comma in the ballot
measure or that any alleged missing comma constitutes a misleading or confusing grammatical
error as alleged by the Plaintiff. The City intends to seek leave of Court to submit a separate
legal brief addressing these issues.
11. Paragraphs 21 through 24 of the Petition again primarily contain the Plaintiff s
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. Further, the City specifically denies the ballot measure contains any
misleading or confusing language regarding the source of revenues that would be made available
or to be pledged to repay any debt authorized by the ballot question. The City intends to seek
leave of Court to submit a separate legal brief addressing these issues.
12. Paragraphs 25 through 28 of the Petition again primarily contain the Plaintiff's
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. Further, the City specifically denies that the submission clause fails to
conform to the form and content requirements of the Taxpayer Bill of Rights ["TABOR"], or that
TABOR even applies to this ballot measure. The City intends to seek leave of Court to submit a
separate legal brief addressing these issues.
13. Paragraphs 29 through 33 of the Petition again primarily contain the Plaintiff's
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. Further, the City specifically denies that the submission clause fails to
conform to the form and content requirements of the TABOR amendment by allegedly omitting
the wording prescribed by Article X , Section 20(3) of TABOR, or that TABOR even applies to
this ballot measure. The City intends to seek leave of Court to submit a separate legal brief
addressing these issues.
14. Paragraphs 34 through 36 of the Petition again primarily contain the Plaintiff's
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. Further, the City specifically denies that the submission clause does not
conform with the anti -consolidation clause of Article X, Section 20(3) of TABOR, or that
TABOR even applies to this ballot measure. The City intends to seek leave of Court to submit a
separate legal brief addressing these issues.
K
15. Paragraphs 37 through 39 of the Petition again primarily contain the Plaintiff's
legal arguments and conclusions rather than factual allegations, and as such do not require an
admission or denial on the part of the City. Nevertheless, the City generally denies said legal
arguments, as stated. The City further specifically denies that any alternative to the ballot title is
required, or that the Plaintiff's proposed alternative ballot language is appropriate or necessary.
AFFIRMATIVE DEFENSES
1. Plaintiff has failed to post the mandatory bond required by C.R.S. §l-11-203.5(1),
and thus this Court is not required to take jurisdiction of this action.
2. Plaintiff's Petition consists largely of legal arguments and conclusions rather than
a short and plain statement of the claim, contrary to the general pleading requirements set forth
in Rule 8 of the Colorado Rules of Civil Procedure. As stated above, the City is not required to
admit or deny said legal arguments and conclusions under the general rules of pleading. The City
reserves the right to submit its legal arguments on the issues raised in the Petition prior to the
hearing required by C.R.S. § 1-11-203.5, and intends to seek leave of Court to submit a separate
legal brief prior to said hearing.
3. The subject ballot measure described in Ordinance 101, 2017 complies with
applicable provisions of the Fort Collins City Charter and the City Code, as well with any
applicable provisions of Colorado state election laws. The ballot question is not subject to
TABOR because it does not now seek voter approval to issue any revenue bonds to fund
telecommunication facilities or services.
4. The Petition fails to state a claim upon which relief can be granted.
5. The Plaintiff's Petition is frivolous, groundless or vexatious entitling the City to
an award of its reasonable costs and attorney's fees incurred in defense of this action.
6. The Plaintiff may have failed to join an indispensable party to this action. It is the
Plaintiff's burden to join all indispensable parties, and his failure to do so requires dismissal of
this action.
7. The City reserves the right to add or delete affirmative defenses based on
information gathered in the process of defending the Plaintiff's claims.
WHEREFORE, Defendant City of Fort Collins respectfully prays that the Court enter
judgment in its favor and against the Plaintiff, upholding the validity of the challenged
Ordinance and ballot question, and award the City its reasonable attorney's fees, expert witness
fees, costs and such further relief as the Court shall deem just and proper.
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The City further requests this Court to: (a) immediately set this matter for an
expedited hearing to occur within 10 days of the filing of this Answer, and (b) issue an
order requiring the Plaintiff to immediately post a bond in the amount of $3,500 to
sufficiently cover the costs and attorney's fees the City estimates it will reasonably expend
defending this matter through the summary adjudicative hearing, all as mandated by
C.R.S. §1-11-203.5.
DATED this 24TH day of August, 2017.
WICK & TRAUTWEIN, LLC
By: s/Kimberly B. Schutt
Kimberly B. Schutt, #25947
Attorneys for Defendant
EMS
FORT COLLINS CITY ATTORNEY' S OFFICE
By: s/John R. Duval
John R. Duval, # 10185
Attorneys for Defendant
[This document was served electronically pursuant to C.R.C.P. 121 §1-26. The original
pleading signed by defense counsel is on file at the offices of Wick & Trautwein, LLC and the
Fort Collins City Attorney's Office]
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VERIFICATION
STATE OF COLORADO }
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COUNTY OF LARIMER }
The undersigned, Delynn Coldiron, the Fort Collins Interim City Clerk, and Rita Knoll,
Fort Collins Chief Deputy City Clerk, both being first duly sworn, state under oath that due to
the recent resignation of Wanda Winkelmann as the Fort Collins City Clerk, they are currently
assuming and sharing the duties of the designated election official for the City of Fort Collins,
and that they have each read the above and foregoing Verified Answer, Request for Expedited
Hearing and For Setting of Contestor's Bond Amount Pursuant to C.R.S. §l-11-203.5, that they
each know the contents therein, and that the same are true to the best of their respective
knowledge and belief.
V), -A
Delynn Wdiron
Interim City Clerk
Rita Knoll
Chief Deputy City Clerk
The foregoing instrument was subscribed and sworn to before me this the day
of August, 2017, by Delynn Coldiron and Rita Knoll.
Witness my hand and official seal.
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT CITY'S ANSWER, REQUEST FOR EXPEDITED HEARING AND FOR
SETTING OF CONTESTOR'S BOND PURSUANT TO C.R.S. §1-11-203.5 was filed via
Integrated Colorado Courts E-Filing System (ICCES) and served this 24TH day of August, 2017,
on the following:
Eric Sutherland
3520 Golden Current Blvd.
Fort Collins, CO 80521
A courtesy copy was also emailed to Mr. Sutherland Mz
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s/
[The original certificate of electronic filing signed by Cary C. Alton is on file at the Fort Collins
City Attorney's Office]
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