HomeMy WebLinkAbout2017CV219 - ERIC SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 007A - EXHIBIT A TO OBJECTIONColorado Supreme Court
2 East 14th Avenue
Denver, CO 80203
Appeal Pursuant to C.R.S. 1-11-203.5
District Court, Larimer County, 2016CV230
Plaintiff-Appellant:
Larry Sarner,
v.
Defendants-Appellees:
Angela Myers, Larimer County Clerk and Recorder and City
of Loveland.
Supreme Court Case No:
2016SA261
ORDER OF COURT
Upon consideration of Appellant Larry Sarner’s Petition for Rule to Show Cause and
Opening Brief, and Appellee City of Loveland’s Opening Brief and Answer Brief, and now
being sufficiently advised in the premises, the Court states the following:
Appellant brought an action pursuant to section 1-11-203.5, C.R.S. (2016) challenging
certain municipal ballot measures appearing on the November 8, 2016 ballot. The trial court set
bond pursuant to 1-11-203.5(1) at $10,000. When Appellant failed to post the $10,000 bond, the
court dismissed the action for failure to post the bond. Appellant filed an original proceeding
with this court pursuant to C.A.R. 21 challenging the dismissal. This court treated the filing as
an appeal of a final order of dismissal pursuant section 1-11-203.5(4) and ordered briefing.
Contests “concerning the order on the ballot or the form or content of any ballot title”
shall be “summarily adjudicated.” §1-11-203.5(1). The summary adjudicative hearing thus
narrowly considers “the order on the ballot” and “the form or content of any ballot title,” and is
DATE FILED: October 27, 2016
CASE NUMBER: 2016SA261
to be held within 10 days of filing the answer. §1-11-203.5(2). The bond requirement of section
1-11-203.5(1) is “a bond . . . running to the contestee and conditioned to pay all costs, including
attorney[‘]s fees, in case of failure to maintain the contest.” The bond requirement thus ensures
that the contestee “maintains the contest” through the summary adjudicative hearing. The
amount of the bond, therefore, should reflect the costs and attorney’s fees that may reasonably be
expended through the summary adjudicative hearing.
The district court, however, set the $10,000 bond in this case based upon the desire to
“insure that a groundless action is not maintained.” We conclude that in so ruling, the trial court
abused its discretion in two respects.
First, the court used a frivolousness standard, rather than tying the bond to the fees and
costs that would result from a failure to maintain the contest. Because the district court applied
the wrong standard, it abused its discretion.
Second, in setting a bond amount of $10,000, the court may have misapprehended the
limited scope of a proceeding under section 1-11-203.5. As noted above, a trial court’s review is
limited to “the order on the ballot or the form or content of any ballot title.” The trial court here,
however, appears to have determined that the hearing in this case would address many of the
other issues that the Appellant has raised. Most of those issues would be beyond the scope of the
hearing envisioned by section 1-11-203.5.
Accordingly, we reverse the trial court’s order dismissing the action based upon failure to
post bond and remand the case for further proceedings.
BY THE COURT, EN BANC, October 27, 2016.